Employment (Standing

Orders) Act, 1946 &

Chapter IV of the IRC
2020
• Before the enactment of the Industrial
Employment (Standing Orders) Act, 1946 the
bargain between the employer and the workman
was settled mutually by the economic law of
demand and supply
• The conditions of employment were governed by
contracts between employers and employees in
different industrial establishments.
• It was taken for granted that the bargain would
secure fair terms and conditions of employment
to the workmen. But later on, the workers felt
that they did not possess adequate bargaining
strength to secure fair terms and conditions of
service.
• So they started collective themselves into
trade unions, owing to which the concept of
• However, these two created new problems for
maintaining industrial peace and production for
the society.
• Only then it was thought that the State had a
vital interest in the settlement of terms of
employment of industrial labour and thus, the
State representing the society entered the
scene and the settlement of labour problems
because tripartite.
• The legislature made an attempt to inference
between labour and employer by introducing the
Industrial Employment (Standing Orders) Act of
1946 so that friction between the employer and
the workman could be minimized.
• Object of the Act
• The object of the Act is to require employers in
industrial establishments to define with
sufficient precision the conditions of employment
under them.
• It is to require the employers in industrial
establishments to define the conditions of
employment under them and make the conditions
known to workmen employed by them before they
accept the employment .
• The object and reasons of such enactment were
published in the Statement in the following terms:
- “Experience has shown that ‘standing orders’
defining the conditions of recruitment, discharge,
disciplinary action, holidays, leaves, etc., go a
long way towards minimizing friction between the
management and workers in industrial
undertakings.”
• To introduce uniformity of terms and conditions in
respect of workmen belonging to the same category
• Application of the Act
• Section 1 of the Act: Application of the Act
• It applies to every industrial establishment
wherein one hundred (100) or more workmen are
employed, or were employed on any day of the
preceding twelve months
• PROVISO: The appropriate Government may, after
giving not less than two months notice of its
intention so to do, by notification in the
Official Gazette, apply the provisions of this Act
to any industrial establishment employing such
number of persons less than one hundred workmen as
may be specified in the notification.
• Section 13-B: Act not to apply to certain
industrial establishments.
• Doesn’t apply to industrial establishment in so
far as the workmen employed therein are persons to
• Section14: Power of the Appropriate Government
to exempt any industrial establishment or class
of industrial establishments from the
application of the Act.
• The appropriate Government may by notification
in the Official Gazette exempt, conditionally
or unconditionally, any industrial
establishment or class of industrial
establishments from all or any of the
provisions of this Act.
• Once the IE(SO) Act becomes applicable to an
establishment, it does not cease to apply on
account of a subsequent fall in the number of
workmen in the establishment.
• Salient Features of the Act
• The employer of every industrial establishment
to which the Act applies is required to frame
draft Standing Orders and to submit them to the
Certifying Officer, generally the Labour
Commissioner, for certification.
• The Certifying Officer has the power to modify
or edit the draft submitted.
• A group of employers of similar industrial
establishments may submit joint Standing Orders
for certification.
• The Government may, by rules, set out model
Standing Orders. The Draft Standing Order
framed by an employer should as far as
practicable be in conformity with the Model
Standing Orders.
• The Act normally applies to every industrial
establishment wherein one hundred or more
workmen are employed.
• The Certifying Officer has the powers of a
Civil Court in respect of certain matters.
• The employer can be penalised for failure to
submit draft Standing Order for certification
and also for contravention of any provision of
Standing Order finally certified.
• Section 2 (e ) “Industrial Establishment”

• (i) an industrial establishment as defined in

the Payment of Wages Act, 1936
• (ii) a factory as defined in the Factories
Act, 1948
• (iii) a railway as defined the Indian
Railways Act; 1890
• (iv) the establishment of a person who, for
the purpose of fulfilling a contract with the
owner of any industrial establishment,
employs workmen;
• Standing Orders: Sec. 2(g)
• Rules relating to matters set out in the Schedule of
the Act.
• Some of them relate to:
• Classification of workmen, whether permanent, temporary,
probations etc.
• Hours of work.
• Attendance and late coming.
• Procedure for applying for leaves.
• Suspension, dismissal, termination of employment.
• The expression “standing orders” means rules
relating to matters set out in the Schedule to the
Act.
• Generally speaking it means a body of rules of an
industrial establishment which governs the terms
and conditions of employment.
• The standing orders have a sanctity and importance
of their own.
• These are not merely parts of contract or private agreement between labour
and the management.
• They have got certain statutory implication under the Act.
• The Schedule to the Act enumerates 11 items in
respect of which the standing orders must be
specified. So far as item 11 in the schedule is
concerned it refers to “Any other matter which may
be prescribed”.
• When the appropriate Government adds any items to
the Schedule, the relevant question to ask would
be whether it refers to the conditions of
employment or not.
• Matters to be provided in Standing Orders
• Classification of workmen, e.g., whether permanent,
temporary, apprentices, probationers, or badlis:
• A permanent workman is a workman who has been engaged on a
permanent basis and includes any person who has
satisfactorily completed a probation period.
• A temporary workman may be defined as a workman who has been
engaged for work of temporary nature likely to be finished
within a limited time.
• The fundamental difference between these two classes of workmen
lies in their tenure of services.
• Terms of appointment show whether a workman has been employed
temporarily or permanently.
• In absence of confirmation in a permanent position by the employer
on the expiry of the prescribed period of service, it is generally
presumed that he is employed temporarily. This presumption can be
rebutted by surrounding facts and other evidence.
• An apprentice workman is defined as a learner who is paid an
allowance during the period of his training.
• A “probationer” is one who is provisionally employed to fill
a vacancy in a permanent post and has not completed three
months’ service in that post unless the probationary period
is extended. If a permanent work-men is employed as a
probationer in a new post he may, at any time, during the
probationary period not exceeding three months, be reverted
to his old permanent post unless the probationary period is
extended.
• A badli workman is one who is appointed in the post of a permanent
workman or probationer who is temporarily absent.
• A badli workman differs from casual workman in this respect
that the work of the latter is simply of casual nature.
• In the case of a badli workman, he works in the place of
workman who is absent for the time being and as soon as that
worker is relieved of his duties.
• But a casual workman is usually employed to finish additional
work which is either piled up or added to the usual work of an
undertaking.
• Every workman must be given a permanent ticket unless he is a
probationer, badli, temporary worker or apprentice.
• A badli workman shall be provided with a badli card, a casual
worker with a casual card, an apprentice with an apprentice
card, and a temporary workman with a temporary ticket.
• Each ticket or card to be carried by a workman will indicate
his status and department to which he is attached.
• In the case of change of status of a workman, his former card
is replaced by a new one.
• If anyone is discharged, he is required to surrender his ticket
• Manner of intimating to workmen periods and
hours of work, holidays, pay-days and wage
rates:
• The period and hours of work for all classes of
workers in each shift shall be exhibited in English
and in the principal languages of workmen employed
in the establishment on notice boards.
• Holidays, pay days and wage rates of workmen are
also required to be displayed on the notice boards
maintained at or near the main entrance of the
establishment and at time-keeper’s office, if any.
• Shift working:
• The employer may at the exercise of his discretion,
fix whether more than one shift will be worked in a
department or departments or any section of a
department of the establishment.
• If more than one shift is worked, the workmen shall
be liable, to be transferred from one shift to
another.
• No shift working can be discontinued without two
months’ notice in writing being given to the
workmen.
• But if the closing of the shift is effected under an
agreement with the workmen, no such notice is
necessary.
• Notice of change in shift working shall be in the
• Attendance and late coming:
• All workmen are required to attend duties at the
establishment at the time fixed and notified on the
notice boards.
• Workmen attending late are liable to the deductions
provided in the Payment of Wages Act, 1936.
5. Conditions of, procedure in applying for, and
the authority which may grant leave and holidays:
• The word ‘conditions’ as used in clause 5 of the
schedule is to be construed in broad and liberal
sense so that the object of an IE(SO) Act can be
achieved.
• Condition is a provision or a stipulation.
• So a provision or a stipulation as to leave and
holidays will necessarily include a provision for
the quantum of holidays and leave and this
construction is consistent with the meaning of the
word conditions.
• Holidays with pay are usually determined in
accordance with law, contract, custom and usage
prevailing in the establishment.
• An application for leave is required to be submitted
to the proper authority (generally a manager)
beforehand who may refuse it on the ground of
sufficient reasons that are to be recorded in
writing in a register maintained for this purpose.
• Absence without leave beyond a fixed period is
treated with serious consequences.
• Requirement to enter premises by certain gates,
and liability to search:
• The workmen of the establishment may be allowed
to enter and leave the premises by certain
gates, but in time of emergency rear gates can
be used for the purpose of exit.
• A workman cannot refuse search on his person at
the gate when he will leave the premises.
• Closing and reporting of sections of the
industrial establishment, temporary stoppages
of work and the rights and liabilities of the
employer and workmen arising therefrom:
• The employer may reserve the right, at any time, in
the events of fire, catastrophe, breakdown of
machinery or stoppage of power supply, epidemics,
civil commotion or other cause beyond his control,
to stop any section or sections of the establishment
wholly or partially for any period or periods
without notice.
• Termination of employment, and the notice to be given
by employer and workmen:
• Provision is to be made in the standing order for
termination of employment.
• For terminating employment of a permanent workman,
notice in writing must be given either by the employer
or the workman.
• Generally, one month’s notice is required to be served
in the case of monthly-rated workmen and the two weeks’
notice in the case of other workmen; alternatively, one
month’s or two weeks’ pay, as the case may be, may be
paid in lieu of notice.
• The expression ‘termination of employment’ is wide
enough to include retirement of employees of the age of
superannuation.
• At the same time language employed does not appear to cover the
case of superannuation which does not depend on any notice and
which covers an event which is automatic.
• It must be given effect without any violation on the part of
the employer or the workmen.
• It is to be noted that re-employment after termination of
9.Suspension or dismissal for misconduct, and acts or omissions which
constitute misconduct:
• Generally, grounds of misconduct are set out in the standing orders of an
establishment.
• In sub-paragraph (3) of clause 14 of Schedule 1 to the Industrial
Employment (Standing Orders) Central Rules, 1946, the following items are
treated as misconduct:
 willful in subordination or disobedience, whether alone or in
combination with others, to any lawful and reasonable order of a
superior,
 theft, fraud or dishonesty in connection with the employer’s business
or property,
 willful damage to or loss of employer’s goods or property,
 taking or giving bribes or any illegal gratification,
 habitual absence without leave or absence without leave for more than
10 days,
 habitual late attendance,
 habitual breach of any law applicable to the establishment,
 riotous or disorderly behaviors during working hours at the
establishment or any act subversive of discipline,
 habitual negligence or neglect of work,
9.Suspension or dismissal for misconduct, and acts or omissions which
constitute misconduct:
• In the absence of standing orders it would be open to the employer to
consider reasonably what conduct ought to be treated as misconduct.
• No Extra-territorial Jurisdiction for Misconduct: In Glaxo Laboratories Ltd.
v. Presiding officer, Labour Court, Meerut, AIR 1984 SC 505, the Supreme
Court has held that
• numerous acts of misconduct such as drunkenness, fighting, indecent or
disorderly behavior, etc., are not per se misconduct.
• Each one of them has correlation to the time or place where it is
committed.
• Such acts would be misconduct punishable if committed with the premises of
the establishment or in the vicinity thereof.
• What constitutes establishment or its vicinity would depend upon the facts
and circumstances of each case.
• An employer has no extra-territorial jurisdiction to punish for misconduct
not connected with the place of work.
• Suppression of Material Fact in ‘Application for Employment’:
• It is well settled that unless either in the certified standing order or
in the service regulations an act or omission is prescribed as misconduct,
it is not open to the employer to fish out some conduct as misconduct and
punish the workman even though the alleged misconduct would not be
comprehended in any of enumerated misconducts;
• Suspension or dismissal for misconduct, and acts or
omissions which constitute misconduct:
• Misconduct:
• Misconduct inconsistent with an employee’s proper discharge of
duties for which he was engaged is good cause for his dismissal
but there is no fixed rule of law defining the degree of
misconduct which will justify dismissal.
• He may be dismissed if he is guilty of fraud or dishonesty in
connection with his employer’s business, but it is not
necessary that moral delinquency should be an element of the
misconduct or that the misconduct should take place during
working hours.
• The act of misconduct on the basis of which punishment is given
must be one enumerated in the SOs. Punishment for an act which
is not mentioned in the SOs is illegal.
• In conflict between general conditions (vide Act) and
special conditions (amongst employer and employee),
statutory condition contained in SOs would prevail. The
latter shall have the overriding effect.
• Such SOs though binding between the employer and employees in
the industry but not binding on industrial dispute.
• The doctrine of hire and fire is completely abrogated
both by statutes and by the industrial adjudication.
9.Suspension or dismissal for misconduct, and acts
or omissions which constitute misconduct:
• An order of dismissal must not be made unless the
workman concerned is informed in writing of the
alleged misconduct and is given an opportunity to
explain the circumstances alleged against him.
• The employer in every case of dismissal may
institute independent enquiries before dealing
with the charges against a workman. This rule
incorporates the principles of natural justice.
• Though the expression natural justice has not been
defined in clear, precise and unambiguous terms
anywhere, it may be described in short the rule of
fair play or righteousness.
• In short, the principles of natural justice
require that a fair domestic enquiry must be
instituted before any step for punishment is taken
against a workman
• Suspension or dismissal for misconduct, and
acts or omissions which constitute misconduct:
• A domestic enquiry cannot be said to have been
properly held unless the following requirement
are strictly observed:
• The employee proceeded against has been informed
clearly of the charges levelled against him.
• The witnesses are examined – ordinarily in the
presence of the employee- in respect of the charges.
• The employee is given a fair opportunity to cross-
examine witnesses.
• He is given a fair opportunity to examine witnesses
including himself in his defence if he so wishes on
any relevant matter.
• The enquiry officer exercise his/her independence in
the matter and do not work under anyone’s direction
or influence.
• Suspension or dismissal for misconduct, and acts
or omissions which constitute misconduct:

• Domestic Investigation
• A domestic investigation in the above procedure is
followed by service of a show-cause notice containing the
charges framed against a workman.
• The workman, in absence of any prescribed rule in the
standing order, is given a reasonable time to answer the
charges distinctly.
• When the employer is not satisfied with the reply of the
workman concerned, the employer will set up the domestic
investigation by appointing an enquiry officer.
• A person whether employed by the employer or an outsider can be
validly appointed to act as an enquiry officer.
• A person is deemed to be disqualified to act as an enquiry
officer on any ground, such as biasness, personal interest, or
• Suspension or dismissal for misconduct, and acts or omissions
which constitute misconduct:

• Second Show-cause Notice:

• In the absence of any standing rule, a second show-cause notice based on
the findings of the enquiry officer is not required to be served on the
workman concerned before the final order of punishment in the form of
dismissal of reduction in rank or any deprivation of any privileges is
passed by the employer.
• Where a criminal case is pending against a workman on the same subject
matter, the employer should ordinarily defer the domestic enquiry into the
misconduct until the criminal case in respect of the similar fact is
concluded.

• Summary Dismissal:
• An employee may be summarily dismissed if he has been guilty of an offence
outside his employment of such a character as to make it unsafe for the
employer to retain him, or if his conduct is insulting and insubordinate
to such a degree as to be incompatible with the continuance of the
relation of the employer and employee.
• Means of redress for workmen against unfair treatment
or wrongful exactions by the employer or his agents or
servants:

• Transfer of Workman:
• The transfer of workman from one department to another is at
the discretion of the Manager provided the terms and conditions
of service are not affected.
• If the order of transfer is prima facie valid, the burden of
proving that it is invalid lies on the workman.
• Under the IE(SO) Act, there is no requirement to frame standing
orders in respect of transfer. Thus, the employer cannot be
denied the normal right available to him to transfer an
employee from one place to another. The employer also cannot
be denied the right to frame rules and regulations relating to
transfer of his employees. The normal right of an employer to
transfer his employees can, however, be curtailed by making a
specific provision in the rules, regulations or statute. In
absence of a standing order an industrial worker can be
transferred.
• 10. Means of redress for workmen against unfair treatment or wrongful
exactions by the employer or his agents or servants:

• Test of Discharge Simpliciter or Punitive in Nature: In Gujarat Steel

Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896, it has
been held that the form of the order of termination or the language in
which it is couched is not conclusive. The court will lift the veil to see
the true nature of the orders.
• Discharge simpliciter in relation to employment law is a termination simpliciter
i.e. termination of services as per terms of contract. it is usually used when the
employer excercises his right under the employment contract in good faith, on
loosing faith. It is distinguished from dismissal as latter is termination by way of
punishment. However if the discharge simpliciter is challenged in the court of law,
court can lift the veil and if the discharge is victimisation, unfairlabour
practice, or punishment for any misconduct, malfide and the said action has
been resorted to dispense with the principles of natural justice of hearing the
employee concerned before punishing him, such termination can be set aside. Where
the employer satisfies the court that action has been taken in good faith then the
discharge is upheld.

• Resignation of a Workman: Employees services generally stands terminated

from the date on which the letter of resignation is submitted to and
accepted by the authority. It is settled principle of law that an employer
would be justified in refusing to accept the resignation of an employee
under the following circumstances: (i) An employee submits resignation in
the middle of an urgent work in which his presence is essential, (ii)
There is a disciplinary enquiry pending, against the employee.

• Fixation of Retirement Age: Age of retirement or superannuation should be

prescribed under the standing orders bearing in mind that after certain
age keenness and initiation to work is lost. There is no hard and fast
• 10. Means of redress for workmen against unfair
treatment or wrongful exactions by the employer or his
agents or servants:

• Any provision in the standing orders, for example,

provision as to age of retirement, would apply to all
the employees of the establishment irrespective of
whether they entered into service prior to or
subsequent to the coming into force of the Standing
Orders.

• The Standing Orders are rules relating to the matter

set out in the schedule mentioned in the preceding
slide. The courts have held that certification of
standing orders was to be limited to the matters given
in the schedule of the Act and additional provisions
were not legally enforceable.

• The Standing Orders are contractual in nature

(statutory recognized contract) and do have a statutory
• TERMS AND CONDITIONS OF EMPLOYMENT TO BE
INCLUDED IN STANDING ORDERS
• The Act now requires that the terms and
conditions of employment in relation to matters
specified in the Schedule must be included in
the standing orders and they must be certified.
• The Act further aims at introducing an element
of uniformity in the matters of terms and
conditions of service in all industrial
establishments to which the Act applies.
No private Contract of Service
• After the commencement of the Act, the
employers and workmen are no longer governed by
the private contract of service.
• It is now well-settled law that in the case of
a conflict between the contract of service
entered into between the employee and the
• Legal Nature of Standing Orders: Can a contract
override Standing Orders?
• The certified Standing Orders have a statutory force.
• The Standing Order implies a contract between the employer and
the workman.
• Therefore, the employer and workman, cannot enter into a
contract overriding the certified Standing Orders.
• In Western India match Co. Ltd. v. Workmen, AIR 1973 SC 2650,
it has been laid down that the employer cannot enter into an
agreement with a workman which is inconsistent with the
standing orders of the company. The terms of the standing
orders would prevail over the corresponding terms in the
contract of service. The employer cannot enforce simultaneously
the standing orders regulating the classification of workmen
and a special agreement with an individual workman setting his
categorization.
• While the Standing Orders get certified, they become
part of the statutory terms and govern all relations
between the employer and employees. They are binding
both on the employer and employees.
• To claim any exception, it has to be shown that the
Standing order is inconsistent with some operative
EFFECT OF CERTIFIED STANDING ORDERS
• Standing Orders after having been certified under
the Industrial Employment (Standing Orders) Act,
1946 become part of the statutory terms and
conditions of service between the employer and his
employee and that they govern the relationship
between the parties.
• The object of the Act is to have uniform standing
orders providing for the matters enumerated in the
Schedule to the Act.
• It was intended that there should not be different
conditions of service for those who are employed after
the Standing orders came into force.
• Once the Standing Orders come into force, they
bind all those presently in the employment of the
concerned establishment as well as those who are
appointed thereafter.
• Where the Standing Orders are amended subsequently
to the workman entering into service. The Standing
INTERPRETATION: EFFECT OF STANDING ORDERS

• The scheme of the Act would show, that the certified standing
orders have more or less statutory flavor.
• This Act was enacted for ameliorating the conditions of the
workers and therefore the conditions of service prescribed
thereunder must receive such interpretation as to advance the
intendment underlying the Act and defeat the mischief.
SECTION 2

• “Certifying Officer” means a Labour Commissioner or a

Regional Labour Commissioner, and includes any other officer
appointed by the appropriate Government, by notification in
the Official Gazette, to perform all or any of the functions
of a Certifying Officer under this Act.

• “Wages” have the meanings respectively assigned to them in

clauses (rr) of Section 2 of the Industrial Disputes Act,
1947.

• “Workman” have the meanings respectively assigned to them in

clauses (s) of Section 2 of the Industrial Disputes Act,
1947.
Hence, there shall be a contract of service (employment)
and not contract for service (employment).

• “Trade Union” means a trade union for the time being

registered under the Indian Trade Union Act, 1926. So, an
unregistered trade union has no role to play under the
IE(SO) Act, 1946.
PROCEDURE FOR CERTIFICATION
• Section 3:
• Submission of Draft Standing Orders:
• Within six months on which the date this Act becomes
applicable to an industrial establishment, the
employer of that establishment shall submit to the
Certifying Officer five copies of the Draft Standing
Orders proposed by him.
• The Draft Standing Orders must make provision for
every matter, set out in the Schedule, which may be
applicable to the industrial establishment.
• In those cases where Model Standing Orders have been
prescribed the Draft Standing Orders shall be, so
far as practicable, in conformity with such model.
• Section 4:
• Conditions for Certification of Standing
Orders:
• The Certifying Order shall certify the Standing
Orders under this Act if:
• Provision is made in the Standing Order for every matter set
out in the Schedule, which is applicable to the industrial
establishment, and,
• The Standing Orders are otherwise in conformity with the
provisions of this Act.
• Certifying Officer or the Appellate authority
shall have the power to adjudicate upon the
fairness or reasonableness of the provisions of
• Section 4:
• The appellate authority or Certifying Officer shall see
whether the Standing Orders satisfy these conditions.
• If not, they can made necessary additions or modifications
in the Draft Standing Orders.
• When the Act provides that it should be in conformity with
the Model Standing Orders, it does not mean that they should
follow the model verbatim.
• It simply means that the model only presents a pattern and the
drafts should try to resemble it.
• Also, where the framers (management) fail to follow the model,
they must satisfy the certifying officer as to the reasons for
making any departure made against the Model Standing Order.
• If no Model Standing Order has been set by the appropriate
government, it is the duty of the Certifying Officer to see that
the Draft Standing Order contains provisions for every matter set
out in the Schedule applicable to the industrial establishment.
• Sec. 5: Certification of Standing Orders
• When the draft Standing Orders is submitted to the
Certifying Officer, he shall forward a copy of it to
Trade Union, if any, or if there is no Trade Union to
the workmen.
• The workmen or the Trade Union is required to submit
the objections to the Certifying Officer within 15 days
from the receipt of the notice.
• The Certifying Officer shall give the employer, Trade
Union or workmen the opportunity of being heard.
• He shall then decide whether any addition or
modification in the draft Standing Orders is necessary.
• The Certifying Officer shall, after making
modification, certify the draft, and shall send within
seven days, certified copies of it to the employer,
Trade Union or other prescribed representatives of the
workmen.
• The Standing Orders, when certified, will be binding on
the employees, who are at the time in service of
• Submission of draft standing orders (section 3)
• A statutory obligation is cast on the employer to
submit to the Certifying Officer within six (6)
months from the date of application of the Act to
his industrial establishment, five (5) copies of
the draft standing orders.

• Draft standing orders contain those rules and

conditions that are proposed to be adopted by the
employer for adoption in his industrial
establishment.

• The draft standing orders shall provide every such

matter as set out in the Schedule to the Act, and
where model standing orders have been prescribed
for an industrial establishment, provisions shall
be made in the draft standing orders, as far as
• Submission of the draft standing orders is obligatory on every
employer irrespective of whether there are existing conditions of
service or not. Section 3(2) cannot be construed as to make an
exception in the case of an employer who has settled certain
conditions of service which should apply to his employees.

• In preparing the draft standing orders, the employer need not

confine directly to matter set out in Schedule alone; draft need
not copy model standing orders verbatim. In other words, where the
model standing orders are prescribed for an industrial
establishment, the draft must conforms to the model prescribed by
the appropriate Government, in substance. It simply means that the
model standing orders furnish the pattern which the draft should
try to resemble to imitate.

• Draft standing orders cannot relate matters outside the Schedule.

Extension of standing orders to matters not included in the
Schedule will be complete nullity. [Workmen of Lakheri Cement
Works Ltd. v. Associated Cement Companies Ltd., (1976) 20 FLR 243]
• Standing orders to be accompanied by particulars of workmen: The draft
standing orders submitted shall be accompanied by a statement giving
prescribed particulars of the workmen employed in the industrial
establishment including the name of the trade union, if any, to which they
belong.

• The prescribed particulars of workmen for this purpose are the following:
• Total number of workmen employed.
• Number of permanent workmen.
• Number of temporary workmen.
• Number of casual workmen.
• Number of badlis or substitutes.
• Number of probationers.
• Number of apprentices.
• Name of the trade union(s), if any, to which the workmen belong.
• Remarks.
• Form
• An application for certification of standing orders is to be made
in Form I as set out in Schedule II of the Industrial Employment
(Standing Orders) Central Rules, 1946.

• Joint Draft of Standing Orders

• A group of employers in similar industrial establishment may
submit a joint draft of standing orders subject to such conditions
as may be prescribed.

• Steps to be taken by Certifying Officer

• As soon as the certifying officer receives an application for
certification of standing orders, he shall take any of the
following steps:
• Where there is a trade union of the workmen, a copy of the draft standing
orders must be forwarded to the trade union together with a notice in Form
II.
• Where there is no such trade union, he must cause a meeting of the workmen
to be called so as to elect three (3) representatives, to whom he must on
their election, forward a copy of the draft standing orders together with a
notice in Form II.
• If the workmen desire to file any objections to the draft standing orders,
that must be submitted fifteen (15) days from the receipt of the notice to
the certifying officer.

• The certifying officer is under statutory obligation to give the employer

and the trade union of such other representatives of workmen an
opportunity of being heard before any modification of, or addition to the
draft standing orders is decided.

• After giving the employer and the trade union or representatives of the
workmen an opportunity of being heard, the Certifying Officer shall decide
whether or not any modification or addition to the draft submitted by the
employer is necessary to render the draft standing orders certifiable
under this Act, and shall make an order in writing accordingly.

• In Glaxo Laboratories (I) Ltd. v. Presiding Officer, labour Court, Meerut,

AIR 1984 SC 505, it has been held that the power to prescribe conditions
of service is not unilateral but the workmen have the right to object and
to be heard. He cannot decide anything on this vital issue arbitrarily.
• The certifying officer must certify the draft
standing orders after making the necessary
modifications of, or additions to it under section
5(2) of the Act.

• He shall, then within seven days, send

• copies of that certified standing orders
authenticated in prescribed manner, and
• His order or modification of, or additions to the
draft under sub-section (2) to the employer and to
the trade union or other prescribed
representatives of the workmen.
• CONDITIONS FOR CERTIFICATION OF STANDING ORDERS
• The Act does not confer on the certifying officer absolute
discretionary power in the matter of certifying the standing
orders. His power to certify the standing order is limited
exclusively to the fulfilment of the following two
conditions —
• provision is made for every matter set out in the schedule, which
is applicable to the industrial establishment, and
• (b) the standing orders are otherwise in conformity with the
provisions of this Act. (as mentioned in Section 4)

• The Certifying Officer or the appellate authority is under

an obligation to adjudicate upon the fairness or
reasonableness of the provisions of any standing orders. The
authorities have the jurisdiction to go into the question of
impracticability as well as the question of fairness and
reasonableness.

• The certifying officer will also see whether it is

practicable to conform to the model orders as also to
• If the omission is made on the part of the workers’ representative to
raise the question of fairness or reasonableness, which is a relevant
consideration, it does not take away the jurisdiction of the appellate
authority or absolve it of the duty imposed upon it by the statute of
satisfying itself as to the fairness or reasonableness of any of the
provisions of the standing orders. The certifying officer or the
appellate authority is the judge appointed under the statute to consider
the question of fairness or reasonableness of the provisions of the
standing orders.

• Unless it can be said that the consideration of any such quasi-judicial

authority has been arbitrary or perverse or has overlooked a material
provision of law affecting the decision, it is not open to the court upon
a petition for certiorari to interfere with such decision.

• Authentication
• Standing orders certified by the certifying officer under section 5(3) of
the Act must be authenticated by the signature and seal of officer of the
certifying officer.

• Matters not covered by the Schedule / Model Standing Orders can’t be

• SECTION 6
• Appeals:
• Any employer, workman, Trade Union or other
prescribed representatives of workmen aggrieved by
the orders of the Certifying Officer may, within 30
days from the date on which the copies of the Draft
Standing Orders are sent, appeal to the Appellate
Authority whose decision thereon should be final.
• The Appellate Authority shall within seven days of
its order send copies to the Certifying Officer,
employer, Trade Union or other prescribed
representatives if any modifications have been made.
• Appeals:
• There is no provision empowering an Appellate Authority
to correct the mistakes in the Standing Orders finally
certified by it under S. 6(1) of the Act, before the
expiry of six months from the date of last modification.
• When an appeal is preferred under Sec. 6,the Standing
Orders cannot be completely cancelled, they can either be
confirmed or modified.
• APPEALS: An appeal can be preferred against the order
of the certifying officer passed under section 5(2) of
the Act, and not against the certified standing orders
as such. Appeal can be filed within 30 days from date
on which copies are sent by the certifying officer to
the concerned party.

• The appellate authority, whose decision shall be final,

shall by order in writing confirm the standing orders
either in the form certified by the Certifying Officer
or after amending the said standing orders by making
such modifications or additions as it thinks necessary
to render the standing orders certifiable under this
Act.

• The appellate authority shall, within seven (7) days of

its order, send copies of the standing order to the
• The copies of the standing orders as certified by the appellate
authority must be authenticated in the prescribed manner.

• The certifying officer and the appellate authority are duty bound
to examine the question of fairness of the standing orders and
there can be no question now not to give effect to the principle
of uniformity of conditions of service, which is clearly
contemplated by the provisions of the Act.

• The standing orders after certification become binding on all

workmen including the workmen employed previously. Under the Act,
two sets of standing orders are not permissible.

• While adjudging the fairness or reasonableness of any standing

orders, the certifying officer should consider and weigh the
social interest of both employers and employees.
• SECTION 7
• Date of Operation of Standing Orders:
• The Standing Orders certified by the Certifying
Officer shall, unless an appeal is preferred,
come into operation on the expiry of 30 days
from the date on which authenticated copies are
sent.
• If an appeal is preferred, it shall come into
operation on the expiry of seven days from the
date on which copies of the orders of the
Appellate Authority are sent.
• Date of operation of standing orders.-
• The standing orders certified by the certifying
officer under section 5(2) of the Act, must come
into operation on the expiry of thirty (30) days
from the date on which authenticated copies
thereof are sent to the parties.

• But where the standing orders are certified by the

appellate authority under section 6(1) of the Act,
these would come into operation on the expiry of
seven (7) days from the date on which
authenticated copies of the order of the appellate
authority are sent to the parties.

• The standing orders certified finally under the

• Section 8 & 9

• It is open to the employer and the workmen to contract themselves out of

the right and obligations created by the standing orders. But it is
submitted that this view cannot be sustained on two grounds.

• First, as soon as the provisions of the standing orders become operative,

these have the force of law, and anything done contrary to those
provisions even with the consent of two major parties will be deemed to be
unlawful.

• Secondly, an agreement to contract out for non-compliance with the

provisions of the standing orders is allowed under section 10 within a
period of six (6) months from the date of operation, and even in that case
certain statutory formalities are required to be observed for modification
of the standing orders.

• So, it sounds ironical to contract out the obligations of the standing

orders by side-tracking one major and important party, namely, the
certifying officer appointed to represent the public interest and the
• Register of standing orders.-
• A copy of all standing orders as finally certified under
this Act shall be filed by the Certifying Officer in a
register in the prescribed form (Form III) maintained for
the purpose, and the Certifying Officer shall furnish a copy
to any person, on payment of the prescribed fee.
•
Statutory Duty of Employer:
• Statutory duty has also been imposed on the employer to post
the text of the finally certified standing orders in
prominent places both in English language and in the
language understood by the majority of his workmen.

• Copies of the certified standing orders shall be pasted on

special boards to be maintained for this purpose at or near
the entrance through which the majority of the workmen enter
the industrial establishment and in all departments thereof
where the workmen are employed.
• Section 10
• Duration and Modification of Standing Orders:
• The Standing Orders finally certified shall not,
except an agreement between the employer and the
workmen or a trade union or other representative
body of the workman, shall be liable to modification
until expiry of six months from the date on which
Standing Orders or the last modifications came into
operation.
• As far as modification is concerned, it can only be
done after 6 months from the date on which the
Standing Orders came into operation.
• Duration and Modification of Standing Order:
• An employer or workmen or a trade union or other
authority may apply to the Certifying officer to
have the Standing Orders modified.
• If the employer and the workmen have agreed to the
proposed modifications, a copy of such agreement
shall be filed along with the application for
modification.
• These modifications are again subject to reference
of industrial dispute.
• Shahadra Saharanpur Light Railway Co. vs S.S.
Railway Workers Union:
• Standing order relating to the termination of
service of permanent workmen was modified requiring
the employer to give reasons and communicating the
same to the workmen in addition to giving one
month’s notice or one month pay in lieu of notice.
• Modification was held to be fair and reasonable.
• However, the modification of the Standing Orders
requiring the giving of second show cause notice at
the stage of imposing punishment was not considered
fair and reasonable.
• Generally, duration of the standing orders
certified is final under the Act for a period of
six (6) months from the date of operation. These
cannot be modified during this period except on an
agreement between the employer and the workmen or
a trade union or other representative body of
workmen.
• It is doubtful that even in that period the
certified standing orders can be modified by an
agreement of the employer and the workmen
observing the formalities laid down in section 10
of the Act.
• “A certified standing orders shall not, except on
agreement between the employer and the workmen or
a trade union or other representatives of the
workmen be liable to modification until the expiry
of six months from the date on which the standing
orders or the last modifications thereof came into
operation”.
• Where such modifications are proposed to be made by
agreement between the employer and the workman or a trade
union or other representative of the workmen, a certified
copy of that agreement shall be filed along with the
application.

• Standing orders once certified by the officer has force of

law. It is not, therefore, possible in law for the employer
and workmen only to enter into an agreement overriding the
statutory contract as embodied in the certified standing
orders. Any contract contrary to the said standing orders
must be ignored.

• From the provision of section 10(1) of the Act it appears

that the right of application for modification of the
certified standing orders during the period of six months
from the date of operation is conferred on the employer and
the workmen jointly, whereas, this right is granted
unilaterally on either of the parties on the expiry of these
• Shahadra Saharanpur Light Railway Co. vs S.S.
Railway Workers Union:
• Section 10 does not state once a Standing Order is
modified and the modification is certified, no
further modification is permissible except upon
proof that new circumstances have arisen since the
last modification. Therefore, it is permissible.
• An application for modification would ordinarily
be made where:
• A change in circumstance has occurred,
• Where experience of the working in the Standing orders
last certified resulted in inconvenience, hardship etc.,
• Where some fact was lost sight of at the time of
• Section 10 A
• Payment of Subsistence Allowance:
• Where any workman is suspended by the employer
pending investigation or inquiry into complaints
or charges of misconduct against him, the employer
shall pay to such workman subsistence allowance:
• At the rate of 50% of the wages which the workman was
entitled to immediately preceding the date of suspension,
for the first ninety days of suspension; and
• At the rate of 75% of such wages for the remaining
period, if the delay in completion of disciplinary
proceedings against such workman is not directly
attributable to the conduct of such workman.
• Dispute regarding subsistence allowance can be
raised as an industrial dispute.
• Where any workman is suspended by the employer, pending
any investigation or inquiry into complaint or charges
of misconduct against him, the employer shall pay to
such workman, subsistence allowance.
• Following would be the rate of subsistence allowance:
• For first 90 days = 50 % of wages;
• For remaining days = 75% of wages (only if delay in completion
of proceedings are not attributable to conduct of workman).

• Dispute as to Subsistence Allowance: Either party may

get the dispute be referred to Labour Court, whose
decision shall be final and binding.
• Where subsistence allowance payable under any other law for the
time being in force in any State is more beneficial than the
provision of this Act, the provisions of such other law shall
be applicable for payment of allowance.
• Even if, there is no provision in the rules of the company for
payment of subsistence allowance, yet the company is bound to pay
subsistence allowance as per principles laid down in section 10A
of the IE(SO) Act. [Bibhu Deb Roy v. J.M. Savery, 1993]
Non-payment of Subsistence Allowance
• Non-payment of subsistence allowance to a worker during the
pendency of enquiry amounts to violation of the principles of
natural justice.
Temporary application of ‘Model Standing Orders’
• From the date of application of this Act to the date of
certification of draft standing order, the prescribed model
standing orders shall be deemed to have been adopted in that
establishment.
• Amended Model Standing Orders does not per se become applicable to
the industrial establishment which has its own certified standing
orders. However, ‘Model Standing Orders’ applicable, where
Certified Standing Orders is silent on some aspect of the Act.
• Section 11
• Powers of Certifying Officer:
• Every Certifying Officer and appellate authority shall have
all the powers of Civil Court for the purposes of receiving
evidence, administering oaths, enforcing attendance of
witnesses and compelling discovery and production of
documents.
• Associated Industries vs. B.B. Singh:
• Supreme Court held that the fact that under S. 11 of the
Act, the Certifying Officer and the Appellate Authority have
all powers of a Civil Court for certain purposes, will not
convert them to a ‘Court’.
• Every certifying authority and appellate authority
shall have all the powers of a civil court for the
following purposes:
• Power for the purpose of receiving evidence,
• Administering oaths,
• Enforcing the attendance of witnesses, and
• Compelling the discovery and production of documents.
• A certifying officer or an appellate authority has
power to rectify any clerical or arithmetical mistakes
in an order passed by him or errors arising therein
from any accidental slip or omission. There is no time
limit for rectification of such mistakes. The power can
be exercised not only by the officer concerned, but
also by his successor-in-office.
• Power of rectification of mistake is not a power of
revision or review. Those mistakes should be apparent
on the face of the record. Such mistake may be patent
or latent one.
• Every certifying authority and appellate authority
shall have all the powers of a civil court for the
following purposes:
• Power for the purpose of receiving evidence,
• Administering oaths,
• Enforcing the attendance of witnesses, and
• Compelling the discovery and production of documents.
• A certifying officer or an appellate authority has
power to rectify any clerical or arithmetical mistakes
in an order passed by him or errors arising therein
from any accidental slip or omission. There is no time
limit for rectification of such mistakes. The power can
be exercised not only by the officer concerned, but
also by his successor-in-office.
• Power of rectification of mistake is not a power of
revision or review. Those mistakes should be apparent
on the face of the record. Such mistake may be patent
or latent one.
• Section 12
• Oral Evidence in Contradiction of Standing
Orders:
• No oral evidence having the effect of adding to or
otherwise varying or contradicting Standing orders
as finally certified under this Act shall be
admitted in any Court.
• Temporary Application of Model Standing Orders:
• Notwithstanding anything contained in Sec. 3 to
12 for the period commencing on the date on
which the Act becomes applicable to the
industrial establishment and ending with the
date on which the Standing Orders as finally
certified under the Act come into operation,
the prescribed Model Standing Orders shall be
deemed to be adopted in the establishment.
• SECTION 13
• Penalties and Procedure:
• Non-submission of draft Standing Orders by the
employer within the time limit specified in the Act
attracts penalty under S. 13 of the Act.
• Also, modification of Standing Orders otherwise than
in accordance with the provisions laid down in S. 10
of the Act shall be punishable.
• Penalty could be a fine extending to Rs. 5000 may be
imposed.
• In case of continuing offence, a further fine
extending to Rs 200 per day.
• Penalties and Procedure:
• An employer acting in contravention of the Standing
Orders finally certifies shall be punishable with
fine that may extend to one hundred rupees, and in
the case of a continuing offence with a further fine
which may extend to twenty-five rupees for every day
after the first during which the offence continues.
• Section 13 A
• Interpretation of Standing Orders:
• If any question arises as to the application or
interpretation of a standing order certified under this
Act, any employer or workman [or a trade union or other
representative body of the workmen] may refer the
question to any one of the Labour Courts constituted
under the Industrial Disputes Act,. 1947, and specified
for the disposal of such proceeding by the appropriate
Government by notification in the Official Gazette, and
the Labour Court to which the question is so referred
shall, after giving the parties an opportunity of being
heard, decide the question and such decision shall be
final and binding on the parties.
• The function of the Labour Court under S. 13A shall only
be limited to the decision of the application or
interpretation of the Standing Orders which is referred
to it.
• This right under 13A is available only to the workman and
• Where the model standing orders are prescribed, these
will be presumed to apply to an industrial
establishment for a temporary period during which the
standing orders are in the process of certification. In
that case the requirement of posting of the model
standing orders, penalties for contravention of the
provisions of the orders and the power of
interpretation of the model standing orders are similar
to those of the certified standing orders.

• Interpretation and enforcement of standing orders

• If any question arises as to the application or
interpretation of a standing order certified under this
Act, it can be referred to a labour court constituted
under the ID Act, 1947. – [Section 13-A]

• The following persons may get the question referred to

labour court:
• Any employer;
• Workman; or
• A trade union or other representative body of workmen.
• The labour court to which the question of application or
interpretation of a standing order certified under this Act
is referred must, after giving the parties an opportunity of
being heard decide the question and such decision must be
final and binding on the parties.

• The function of the labour court is thus limited only to the

decision of the question as to the application or
interpretation of the standing orders which are referred to
it. It is not invested with the power to grant relief in
enforcement of the rights and obligations created by the
standing orders. It cannot, for example, grant a declaration
that the dismissal of the servant is null and void. Interim
relief not allowed while considering the interpretation of
SO.

• A workman cannot go to civil court for enforcement of his

right which emanates to him from provision of this Act.
Question as to applicability of standing order can’t be
examined by civil court. Standing Order can’t be challenged
by writ petition but the aggrieved party may approach the
• CASE LAWS
• Rajasthan State Road Transport Corporation and Another v Bal
Mukund Bairwa (2009) 4 SCC 299

• Facts

• The Appellant is a corporation constituted under the Road

Transport Corporations Act, 1950. In the year 1965, the
Corporation framed its Standing Orders known as Rajasthan
State Road Transport Workers and Workshop Employees Standing
Orders, 1965, which were certified under the Industrial
Employment (Standing Orders) Act, 1946. The said Certified
Standing Orders deal with suspension, termination,
dismissal, removal and/or compulsory retirement, etc.
• A suit was filed by the respondents claiming that the
termination was in violation of the principles of natural
justice.
• A reference to this Bench has been made by a Division Bench
of the Supreme Court for resolution of a purported conflict
in two three-Judge' Bench judgments of this Court regarding
the jurisdictional power of the civil court to entertain
suits challenging orders of termination.
• Issue:

• Whether the civil court has jurisdiction in a

case where the alleged violation is of
principles of natural justice, either on common
law principles or in terms of the statutory
Regulations framed by the appellant?
• Jurisdiction of the Civil Court:
• Section 9 of the Code of Civil Procedure: “The
Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits
of a civil nature excepting suits of which
their cognizance is either expressly or
impliedly barred.”
• Constitution of India - Articles 14 and 12
• Code of Civil Procedure, 1908 - Section 9
• Industrial Disputes Act, 1947 - Sections 2 (g)
and 2 (s)
• Industrial Employment (Standing Orders) Act,
1946 - Section 3
• Holding:

• If an employee intends to enforce his constitutional rights

or a right under a statutory Regulation, the civil court
will have the necessary jurisdiction to try a suit. If,
however, he claims his right and corresponding obligations
only in terms of the provisions of the Industrial Disputes
Act or the sister laws so called, the civil court will have
none. In this view of the matter, in our considered opinion,
it would not be correct to contend that only because the
employee concerned is also a workman within the meaning of
the provisions of the 1947 Act or the conditions of his
service are otherwise governed by the Standing Order
certified under the 1946 Act ipso facto the Civil Court will
have no jurisdiction.
• If the infringement of Standing Order or other provisions of
the Industrial Disputes Act are alleged, the civil court's
jurisdiction may be held to be barred but if the suit is
based on the violation of principles of common law or
• Tata Oil Mills Co. Ltd. V. Workmen, AIR 1965 SC 155

• Facts:

• R and M assaulted and detained A, another employee of the

company outside the premises of the factory. Charge-sheets
were issued against both R and M. The appellant held an
enquiry and sought approval for the dismissal of R and M
from the Industrial Tribunal, before which an industrial
dispute was pending. The Tribunal approved of the dismissal
of R, but did not accord its approval of the dismissal of M.
• R raised an industrial dispute regarding the same. The
Industrial tribunal held that the appellant was not
justified in dismissing R since the matter happened outside
factory, it is a purely private matter not covered under
provisions of Standing Order 22(viii) of the Certified
Standing Orders, and so, ordered his reinstatement.
• The said standing order provides that without prejudice to
the general meaning of the term "misconduct", it shall be
deemed to mean and include, inter alia, drunkenness,
fighting, riotous or disorderly or indecent behaviour within
or without the factory.
• Issue:

• Whether the Tribunal was right in holding that the

facts proved against Mr. Raghavan did not attract
the provisions of Standing Order 22 (viii) of the
Certified Standing Orders of the Appellant?
• Whether the Tribunal was justified in holding that
the Enquiry Officer did not conduct the enquiry in
accordance with the principles of natural justice?
• Whether the dismissal of Mr. Raghavan is actuated
my mala fides or amounts to victimization?
• Whether the domestic enquiry should have been
stayed since criminal proceedings were ongoing
against Mr. Raghavan?
• Rule:

• The said Standing Order 22 (viii) provides that

“without prejudice to the general meaning of
the term “misconduct”, it shall be deemed to
mean and include, inter alia, drunkenness,
fighting, riotous or disorderly or indecent
behavior within or without the factory.”
• Holding:
• Issue (1): The Court held that it would be
unreasonable to include within Standing Order 22
(viii) any riotous behavior without the factory,
which was the result of a purely private and an
individual dispute. For Standing Order 22 (viii)
to be attracted, the Appellant should show that
the disorderly or riotous behavior had some
rational connection with the employment of the
assailant and the victim. However, in the present
case the assault was not an individual or a
private matter. The report of the Enquiry Officer
clarified that the assault was committed by Mr.
Raghavan on Mr. C A Augustine because he was in
favour of the introduction of the Incentive Bonus
• Issue(2): If the domestic enquiry was not
conducted in accordance with the principles of
natural justice and reasonable opportunity was
not given to Mr. Raghavan to lead evidence in
support of his defence, that would be a valid
ground on which the Tribunal can discard the
findings of the domestic enquiry and consider
the matter on the merits uninfluenced by the
said findings. However, from the findings of
the case it can be seen that the Enquiry
Officer had gone out of his way to assist Mr.
Raghavan. The Court said that it cannot be
considered as fault of the Enquiry Officer if
the witnesses do not turn up to give evidence.
• Issue (3): Regarding the allegation of victimisation, it was
found by the Tribunal and the Court that there is no
sufficient evidence in the case that the management or its
Manager, were motivated with victimisation or unfair labour
practice. Regarding the allegation of mala fide intent, the
Court noted that the Tribunal has completely overlooked an
elementary principle of judicial approach that even if a
Judge or Tribunal may reach an erroneous conclusion, either
of fact or of law, the mere error of conclusion does not
make the conclusion malafide.
• With respect to Phulbari Tea Estate v. Workmen [(1960) 1 SCR
32], the Court observed that the case proceeds on the ground
that the findings recorded in fairly conducted domestic,
cannot be reexamined through industrial adjudication unless
the findings are perverse or not supported by any evidence
or some other valid reason of that character. In the present
case, the enquiry was fair and Mr. Raghavan was given
reasonable opportunity to lead his evidence. Thus, the Court
cannot hold that Mr. Raghavan must be allowed to lead such
evidence before the Tribunal, just because the witnesses did
• Issue (4): Citing Delhi Cloth and General Mills
Ltd. v. Kushal Bhan [(1960) 3 SCR 227], the
Court noted that, if a charge framed against a
workman is being tried in a criminal Court, the
employer should stay the domestic enquiry
pending the final disposal of a criminal case.
The employer must adopt this course when the
charge against the workman is of a grave
character, as it would be unfair to compel the
workman to disclose the defence he may take
before the criminal Court. If an employer
proceeds with the domestic enquiry in spite of
the fact that the criminal trial is pending,
the enquiry for that reason alone is vitiated
• Conclusion:

• In order that standing order 22(viii) may be attracted,

the appellant should be able to show that the
disorderly or riotous behaviour had some rational
connection with the employment of the assailant and the
victim.
• In the present case the assault by R on A was not a
purely private or individual matter but was referable
to the difference of opinion between the two in
regard to the introduction of incentive bonus
scheme and that cannot be said to be outside the
purview of standing order 22(viii).
• Appeal allowed. The order passed by the Industrial
Tribunal was set aside and the reference made to it was
• Critical Analysis:

• The holding of this case with respect to the

staying of disciplinary proceedings was further
elaborated in State of Rajasthan v B.K. Meena and
others (1996) 6 SCC 417. In this case, the Supreme
Court observed that the staying of disciplinary
proceedings must be determined with regard to the
facts and circumstances of each case, and no hard
and fast rules can be laid down on that behalf.
The only ground that has been suggested in these
decisions as a valid ground for staying
disciplinary proceedings is that the defence of
the employee in the criminal case may not be
prejudiced, and may only be done in cases of grave
nature. The Court also opined that advisability,
desirability or propriety has to be determined in
• CRIMINAL PROCEEDINGS AND DOMESTIC ENQUIRY:
Kusheshwar Dubey v. M/S Bharat Coking Coal Ltd. &
Others
• Issue
• Whether disciplinary proceedings can be initiated
simultaneously with criminal proceedings or should be
stayed if a criminal case is pending?
• Facts:
• Kusheshwar Dubey (Appellant) was employed as an
electrical in 1986 in the Balihari Colliery of
Bharat Coking Coal Ltd. (Respondent).
• It was alleged that he physically assaulted a
supervising officer (S.K. Mandal) and was thus,
subjected to disciplinary proceedings as well as a
criminal prosecution.
• As both the proceedings were going on
simultaneously, the appellant filed a civil action
• Procedural History

• On December 6, 1986, the Munsif passed an order in

favour of the appellant, staying the disciplinary
proceedings till the criminal case was disposed.
• The respondent appealed to the Civil Court where
respondent’s appeal against the Munif’s order was
dismissed on March 31, 1987.
• Therefore, the respondent filed a revision petition at
the High Court (HC).
• On July 7, 1987, the HC passed an order reversing the
lower court’s judgments allowing the respondent to
continue the departmental proceedings against the
appellant and held the following: “There is no bar for
an employer to proceed with the departmental proceeding
• Holding:
• No general rule can be laid down. Where criminal
as well as disciplinary actions are grounded on
the same facts like the facts of this case, stay
of disciplinary action is justified.
• “There was no legal bar to simultaneous
proceedings being taken against an employee even
though there may be cases where it may be
appropriate to defer the disciplinary proceedings
awaiting the disposal of the criminal case. The
Supreme Court held that it was neither possible
nor advisable to evolve a hard and fast straiacket
formula and that in cases where the charge against
the employee was of a grave nature and involved
complex questions of law and fact, in that event
the disciplinary proceedings could be deferred
till the decision of the criminal trial.”
• In Delhi Cloth & General Mills case, the Supreme Court (SC) held
that principles of natural justice do not require that an employer
must wait for the decision at least of the criminal trial court
before taking action against an employee. However, if the case is
of a grave nature or involves questions of fact or law, which are
not simple, it is advisable that the employer waits for the
decision in order to prevent the defence of the employee from
being prejudiced.
• In Tata Oil Mills case, the SC held that it is desirable that if
the incident giving rise to a charge framed against a workman in a
domestic enquiry is being tried in a criminal court, the employer
should stay the domestic enquiry pending the final disposal of the
criminal case.
• In Jang Bahadur case, the SC stated that in case of the same
issue, the pendency of a court proceeding does not bar the taking
of disciplinary action. The power to take such action is vested in
the disciplinary authority and the proceedings initiated or
continued in good faith can be conducted.
• The employee is free to move the court for an order restraining
the continuance of disciplinary proceedings and if they are
successful, a wilful violation of the order would amount to
• Based on the above these cases, the Court held
the following:
• There is no legal bar for simultaneous
proceedings, however, there maybe cases where
it would be appropriate to defer the
disciplinary proceedings awaiting disposal of
the criminal case.
• It is the burden of the employee to seek an
order of stay or injunction from the court.
• There can be no hard and fast, strait-jacket
formula for the consideration of the same as
the Court should take into account
• CRIMINAL PROCEEDINGS AND DOMESTIC ENQUIRY:
Indian Overseas Bank, Anna Salai V. P Ganesan
(also relevant in Module 5-6)
• Issue:
• Whether pendency of a criminal case by itself would
be a sufficient ground for stay of the departmental
proceedings?
• Held:
• There is no dispute that the criminal action and the
disciplinary proceedings are founded upon the same set of
facts.
• Delhi Cloth and General Mills Ltd. vs. Kushal Bhan (AIR 1960
SC 806): Held that the employer should not wait for the
decision of the criminal court before taking any disciplinary
action against the employee and such an action on the part of
the employer does not violate the principle of natural justice
• Indian Overseas Bank, Anna Salai V. P. Ganesan,
2007 (13) SCALE 446:
• If the case is of a grave nature or involves
questions of fact or law, which are not simple, it
would be advisable for the employer to wait the
decision of the trial court, so that the defence of
the employee in the criminal case may not be
prejudiced.
• Bharat Petroleum Corp. Ltd/ Maharashta General Kamgar
Union

• Issue:
• The right of representation of an 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.
• Model Standing Order:
• "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.”
• Draft Standing Order:
• “If it is decided to hold an enquiry the workman concerned will be
given an opportunity to answer the charge/charges and permitted to be
defended by a fellow workman of his choice, who must be an employee of
the Corporation, The workman defending shall be given necessary time
off for the conduct of the enquiry.”
• Therefore, the difference is that while under the Model Standing Orders, a workman can be
represented in the departmental proceedings by an office bearer of a Trade Union of which he
is a member, he does not have this right under the Draft Standing Orders .
• Held:
• There cannot be any straight jacket formula which can decide
whether a person is entitled to be represented.
• The only embargo is that the representative should be an
employee of the parent establishment, and this embargo is
justified since 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 law in this country does not concede an absolute right of
representation of an employee as part of his right to be heard.
It was further specified that there is no right to
representation as such unless the company, by its Standing
Orders, recognizes such a right."
• Associated Cement Co. Ltd. V. The Workmen and Ors.
• Facts:
• This industrial dispute is in regard to the
dismissal of 5 workmen employed by the appellant,
(The Associated Cement Companies Ltd.) [ACC] on
the behest of various instances of misconduct that
had taken place.
• These 5 workmen were Mehnga Ram, Janak Raj, Daulat
Singh, Malak Ram and Vishwa Nath Bali.
• The respondents contended that the dismissal based
on their “misconduct” of the said workmen was
unjustified, and thus the said dismissed workmen
should be reinstated and their wages for the
period of enforced unemployment should be paid to
them.
• The Government of Punjab referred this dispute for
adjudication to the Industrial Tribunal Punjab,
Patiala, under section 10(1)(d) of the Industrial
Disputes Act.
• Mehnga Ram, Janak Raj and Daualt Singh were involved in
3 instances of misconduct which included having stopped
workmen from getting into the factory and starting
their work in time and causing cessation of work.
Mehnga Ram and Janak Raj, on another instance organized
a meeting where they allegedly instigated their co-
workers to go on a strike and resort to violence. In
the last instance, all 3 of these workmen, along with
Vishwa Nath, against stopped workmen at the factory
gate and thus prevented them from going to their
duties. They had also allegedly indulged in hostile
slogans.
• Malak Ram on the other hand, has allegedly led the
disruption and hooliganism during a cinema show
organized by the management.
• All 5 workmen were thus given charge-sheet and enquiry
was held against them. As a result of the findings
recorded at the said enquiries, the appellant dismissed
• Issue:
• Whether the Industrial Tribunal was justified
in holding that the enquiries held with respect
to the misconduct of Vishwa Nath and Malak Ram
were in accordance to principles of natural
justice?
• Analysis:

• Malak Ram’s enquiry about his misconduct during the cinema show [which
allegedly amounted to misconduct under Standing Order No. 16, sub-clause
(1)], contained three infirmities that leads us to conclude that the same
was not in accordance to Principles of Natural Justice.
(A) The first of these infirmities is that, the 3 enquiry officers
(Manager, Assistant Manager, and Chief Engineer) claimed that they
themselves had witnessed the alleged misconduct of Malak Ram:
• The appellants claimed that being a witness to the misconduct, does not
disqualify the said officers from holding the enquiry.
• The court believed that domestic enquiries should be conducted with utmost
honesty and should be bona fide. Injustice is likely to be a result if a
domestic enquiry is held by an officer who has himself witnessed the
alleged incident.
• Such injustice was found in the present case, when the Manager rejected
Malak Ram’s written explanation, because it was contrary to what the
Manager, the Assistant Manager and the Chief Engineer had themselves seen.
• In deciding the question as to whether the explanation given by Malak Ram
was true or not, the enquiry officer should not have imported his personal
knowledge and the knowledge of his colleagues and should not have also
relied on the reports received from other independent witnesses.
• Such a basis of rejection showed the blatant ignorance towards the
requirements of a proper domestic enquiry.
• (B) The second infirmity in the said proceeding
flows from the fact that enquiry has commenced
with an elaborate cross-examination of Malak Ram
himself.
• The court emphasised that it is necessary in
domestic enquiries, that the employer should take
steps first to lead evidence against the workman
charged, then give an opportunity to the workman
to cross-examine the said evidence and then should
the workman be asked whether he wants to give any
explanation about the evidence led against him.

• The court held that it was unfair that the

employee is closely (cross) examined before any
evidence is led against him.
• (C) The third infirmity that plagued this enquiry was the
fact that in a letter sent by the manager to Malak Ram with
respect to the conclusion of the enquiry, he wrote that
Malak Ram’s version was inconsistent with the evidence that
the Asstt. Manager (One of the enquiry officers) Mr. Mohan
had been maltreated and with what the enquiry officers had
themselves seen.
• Given the role of Asstt. Manager in the enquiry, it is clear
that what weighted with the enquiry officers was the fact
that Mr. Mohan had been maltreated by Malak Ram and that
Malak Ram's misconduct had been seen by the enquiry officers
themselves.

• Therefore, in coming to the conclusion that Malak Ram was

guilty of the misconduct, the enquiry officers have plainly
relied upon their own knowledge, and that is reasonably
calculated to create an impression in the mind of Malak Ram
that the present enquiry was nothing more than a sham or an
empty formality.
• Conclusion:

• The court confirmed the award made in respect

of Malak Ram and Vishwa Nath by the Industrial
Tribunal and upheld that the enquiries were not
conducted according to the principles of
natural justice.

• Malak Ram and Vishwa Nath were to be reinstated

with continuity of service, coupled with full
payment of wages from the date of their
dismissal to the date of their reinstatement as
compensation for wrongful dismissal.
• Shahdara-Saharanpur Light Railway Company Ltd. V.
Shahdara- Sahanranpur Railway Workers’ Union

• Facts
• The appellant company obtained a certified
standing order from the regional Labour
commissioner under section 4 of the Act.
• Further, the appellant-company and the respondent
union from time to time made application for
modification of that order.
• Sometimes thereafter, the chief labour
Commissioner passed an impugned order(challenged
in this court by the Company) allowing four such
modifications to the original standing order.
• Among the all modifications, the appellant company
objected to all the modifications while the
respondent-Union’s main concern in those
modification was that some time limit was
necessary for the disposal of the appeals since
the general managers of the company usually take
months to dispose of such appeal hence delaying
• Therefore, one of the modification passed through
the impugned order was a direction that every such
appeal shall be disposed of by the appellate
authority within sixty days from the date of its
receipt.
• Another important modification which was allowed
in the impugned order is as follows that in case
the management propose to remove the workman from
service they shall serve on the workman separate
show cause notice to that effect.
• The counsel for the company moved a special leave
petition to the supreme court challenging the
impugned order on the grounds of the applicability
• Issue:

• To what extend the scope of application of

section 10 (2) of the Industrial Employment
(standing orders) Act 20 of 1956, which was
further amended by Act 36 of 1956 is applicable
when determining the duration and modification
of standing orders under the Act.
• Rule:
• Section 10(2) of the Industrial Employment
(Standing Orders) Act, 1946
• Analysis:

• The object of the standing order is to make it clear to both the parties
on what terms and conditions the workmen are offering to work and the
employer is offering to engage them.
• Hence, the Industrial Employment (standing Order) requires the employers
to define the condition of service in their establishment and to reduce
them to writing and to get them compulsory certified with a view to avoid
unnecessary industrial dispute.
• It was held over the conditions for certification of standing order that
the Modification of standing orders, is permissible under section 10 but
modification can only be achieved by adhering to the prescribe manner.
• The Modification of standing order requiring giving of reason in cases
related to discharge of workmen, the court further found and held to be
fair and reasonable.
• On answering to the Counsel of the companies contention over the question
of fairness and reasonableness they held that the question as to fairness
and reasonableness of modification has been left by legislature to the
authorities empowered under the act and the supreme court under article
136 of the constitution and it would not be justified in interfering with
conclusions of authorities unless an important principle of law requiring
elucidation is involved.
• On duration and modification of Standing Orders, the
Supreme Court laid down respectively:
• The standing order relating to the termination of
service of a permanent workmen was modified requiring
the employer to give reasons and communicating the same
to the workmen in addition to giving one month’s notice
or one month’s pay in lieu of notice.
• The modification was held to be fair and reasonable .
But the modification of the standing orders requiring
requiring the giving of second show cause notice at the
stage of imposing punishment of removal cannot be
considered as fair and reasonable.
• And section 10 does not state that once a standing
order is modified and the modification is certified, no
further modification is permissible except upon proof
that new circumstances have arisen since the last
modification.
• An application for modification would ordinarily
be made where
• (1) a change of circumstances has occurred. Or
• (2) where experience of the working of the
standing order last certified results in
inconvenience , hardship anomaly etc.
• (3) where some facts was lost sight of at the time
of certification. Or
• (4) where the applicant feels that a modification
will be more beneficial.
• It is clear that in categories other than first
one , there will be no change of circumstances,
but that does not mean that no modification can be
asked although the standing order has resulted in
hardship inconvenience or anomaly etc. but because
• Section 10 does not lay down any restrictions on the
right to apply for modifications except those that are
provided in the section itself.
• It was further observed by the supreme court that “the
act is a beneficent piece of legislation and therefore
unless compelled by any words in int the court would
not be justified in importing in section 10 through
inference only a restriction to the right conferred by
it on account of supposed danger of multiplicity of
application.
• An important keynote on the judgment over the issue of
duration was that the object of providing a time of 6
months for modification from the date the Standing
Orders of the modification came into operation was in
order to allow the standing orders to work for a
sufficiently long time to see whether they work
properly or not.
• Even that time limit is not rigid because a
• CRESCENT DYES AND CHEMICALS LIMITED v. RAM
NARESH TRIPATHI
• Facts:
• Ram Naresh Tripathi a workman of Crescent Dyes
and Chemical Ltd. was charge sheeted for
misconduct.
• A domestic enquiry was conducted to investigate
the alleged acts of misconduct of the workman.
• The workman requested that he be represented by
Mr. Talraja.
• His request was rejected as the Mr. Talraja was
not a member of a recognized trade union or any
union recognized to be functioning in the
employer’s establishment.
• Issue:
• Whether a workman is entitled to be represented
by an office bearer of another Trade Union, who
is not a member of either a recognised union or
a non-recognised union functioning within the
undertaking in which the workman is employed,
notwithstanding the statutory limitation
contained in the certified Standing Orders and
Clause (ii) of Section 22 of the Act?
• Holding:
• The right to be represented by a counsel or agent
of one's own choice is not an absolute right and
can be controlled, restricted or regulated by law,
rules or regulations including the Standing
Orders.
• Once the Standing Orders get incorporated in the
contract of service both the employer and the
employee are bound by those terms and the employee
cannot be heard to contend that notwithstanding
the same he would insist on an outsider
representing him unless any special statute
permits him such representation.
• There is no such statute which has the effect of
overriding the Standing Orders except the Act,
Section 22(ii) whereof enlarges the scope and
• The Board of Trustees of the Port of Bombay V.
Dilipkumar Raghavendranath Nadkarni AIR 1983 SC 109
• Facts:
• A charge-sheet was drawn up against the 1st Respondent
(employee) for the alleged misconduct and an Enquiry
Officer was appointed to hold the enquiry against him.
• Before the enquiry opened, the first respondent
submitted a request seeking permission to engage a
legal practitioner for his defence.
• Rules were silent on the question of representation
of the delinquent practitioner.
• The Chairman of the appellant rejected the employee's
request to engage a legal practitioner for his
defence.
• The Chairman, however, appointed two officers, Legal
Advisor and Junior Assistant Legal Advisor respectively
of the appellant as Presenting Officers before the
Enquiry Officer.
• As a sequel to the rejection of his request, the first
respondent out of compelling necessity submitted a
request that Shri V.V. Nadkarni be permitted to appear
• Meanwhile, as the enquiry was in progress,
a regulation came into force enabling a
delinquent employee to engage a legal
practitioner if the presenting officer
appointed by the disciplinary authority
is a legal practitioner.
• Even after the regulation came into force,
the request of the employee was rejected. At
the end of the enquiry the respondent was
dismissed from service.
• At the end of the enquiry, the first respondent
was dismissed from service.
• Issue:

• Whether where in a disciplinary enquiry by a

domestic tribunal, the employer complaining
misconduct appoints legally trained person as
Presenting-cum-Prosecuting Officer the denial
or refusal of a request by the delinquent
employee seeking permission to engage a legal
practitioner to defend him at the enquiry,
would constitute such denial of reasonable
opportunity to defend one self and thus violate
one of the essential principles of natural
• Holding:
• The time honoured and traditional approach is that a
domestic enquiry is a managerial function and that it is
best left to management without the intervention of persons
belonging to legal profession. This approach was grounded on
the view that a domestic tribunal should hear the delinquent
employee in person and in such an informal enquiry.
• Even in a domestic enquiry there can be very serious charges
and adverse verdict may completely destroy the future of the
delinquent employee. In the past it could be said that there
was an informal atmosphere before such a domestic tribunal
and that strict rules of evidence and pitfalls of procedural
law did not hamstring the enquiry by such a domestic
tribunal. We have moved far away from this stage. The
situation is where the employer has on his payrolls labour
officers, legal advisers lawyers in the garb of employees
and they are appointed Presenting-cum-Prosecuting Officers
and the delinquent employee pitted against such legally
trained personnel has to defend himself.
• Now if the rules prescribed for such an enquiry did not
place an embargo on the right to the delinquent employee to
be represented by a legal practitioner, the matter would be
in the discretion of the Enquiry Officer whether looking to
the nature of charges, the type of evidence and complex or
simple issues that may arise in the course of enquiry, the
delinquent employee in order to afford a reasonable
opportunity to defend himself should be permitted to appear
through a legal practitioner.
• In this case, when the enquiry commenced the rules neither
provided for permitting the delinquent employee to be
represented by an advocate nor an embargo was placed on such
appearance. The rules were silent on this point. But the
Chairman of the appellant while rejecting the request of the
first respondent seeking permission to appear through a
legal practitioner simultaneously appointed, Legal Adviser
and Junior Assistant Legal Adviser, in the employment of the
appellant as Presenting cum- Prosecuting Officers. The
normal inference is that according to the Chairman of the
appellant the issues that would arise in the enquiry were
• While he directed two of his law officers to
conduct the enquiry as prosecutors, he
simultaneously denied such legal representation
to the delinquent employee when he declined the
permission to the first respondent to appear
through a legal practitioner. One can imagine
how the scales were weighted and thereby tilted
in favour of the prosecuting officer.
• Apart from any legal proposition or formulation
this approach would be considered as utterly
unfair and unjust. In the facts of this case,
this enquiry would be a one sided enquiry
weighted against the delinquent Officer and
would result in denial of reasonable
• In such a situation, it does not require a long argument to
convince that the delinquent employee was denied a
reasonable opportunity to defend himself and the conclusion
arrived at would be in violation of one of the essential
principles of natural justice, namely, that a person against
whom enquiry is held must be afforded a reasonable
opportunity to defend himself.
• A stage has been reached in terms of fair play in action
that where in an enquiry before a domestic tribunal the
delinquent officer is pitted against a legally trained mind,
if he seeks permission to appear through a legal
practitioner the refusal to grant this request would amount
to denial of a reasonable request to defend himself and the
essential principles of natural justice would be violated.
• Reference has also to be made to a regulation which came
into force after the enquiry began. This regulation mandated
assistance of a legal practitioner to the delinquent officer
if the department was also represented by lawyers. Once this
came into force, there was an obligation upon the Chairman
to allow the accused officer to employ a lawyer. The
• In such a situation, it does not require a long argument to
convince that the delinquent employee was denied a
reasonable opportunity to defend himself and the conclusion
arrived at would be in violation of one of the essential
principles of natural justice, namely, that a person against
whom enquiry is held must be afforded a reasonable
opportunity to defend himself.
• A stage has been reached in terms of fair play in action
that where in an enquiry before a domestic tribunal the
delinquent officer is pitted against a legally trained mind,
if he seeks permission to appear through a legal
practitioner the refusal to grant this request would amount
to denial of a reasonable request to defend himself and the
essential principles of natural justice would be violated.
• Reference has also to be made to a regulation which came
into force after the enquiry began. This regulation mandated
assistance of a legal practitioner to the delinquent officer
if the department was also represented by lawyers. Once this
came into force, there was an obligation upon the Chairman
to allow the accused officer to employ a lawyer. The
• Conclusion:
• Where in an enquiry before a domestic tribunal
the delinquent is pitted against a legally
trained person and if he had sought
permission to appear through a legal
practitioner, refusal to grant such request
would amount to denial of reasonable
opportunity to defend himself.
• Rohtak and Hissar District Supply Co. Ltd. v
State of U.P. AIR 1966 SC 1471 (IESO)

• Issues:
• Whether the certified standing order(s) can be
ultravires the Act or have provisions which do
not fall within the purview of the Act?
• Whether Industrial Employment (Standing Orders)
Act, 1946 is in conflict with the U.P.
Industrial Disputes Act, 1947?
• What is the scope of the “reasonableness” and
“fairness” standard under the Industrial
Employment (Standing Orders) Act, 1946?
• Whether conformity with Model Standing Order is
mandatory under the scheme of the Act?
• Holding:

• In 1956, Section 4 of the Act had been amended to impose

upon the Certifying Officer or the Appellate Authority, the
duty to adjudicate upon the fairness or the reasonableness
of the provisions in the Standing Orders. Therefore, the
Certifying Officer and the Appellate Authority are duty-
bound to ensure that the terms of the Standing Orders are
fair and reasonable, even if both the employer and the
employee are in agreement with the draft Standing Orders.
• The court held that the Act (Standing Orders Act) intends to
secure to industrial employees ‘clear’ and ‘unambigious’
conditions of employment. Therefore, Setalvad’s argument
that there is a conflict between the Act with the U.P. Act
or the Central Act were rejected.
• Provision of pension or any retiral benefit can only be
extended by the employer or upon agreement between the
parties. Such questions cannot be unilaterally or sui-moto
decided by the Certifying Authority.
• Under Section 3(2) of the Act the employers have to frame draft
Standing Orders and they must normally cover the items in the
Schedule to the Act. If, however, it appears to the appropriate
authorities that having regard to the relevant facts and
circumstances, it would not be unfair and unreasonable to make a
provision for a particular item, it would be competent for them to
do so. But the employer cannot insist upon adding a condition to
the Standing Order which relates to a matter which is not included
in the Schedule.
• Section 3(2) of the Act specifically requires that the Standing
Orders shall be, as far as practicable, in conformity with the
model. These words indicate that the appropriate authority may
permit departure from the Model Standing Orders if it is satisfied
that insistence upon such conformity may be impracticable.
Moreover, this fact also shows that in a given case, the
appropriate authority may permit departure from the Model Standing
Orders and may come to the conclusion that one or the other of the
conditions included in the Model Standing Orders may not, for the
time being, be included in the Standing Orders of any particular
establishment.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V.
Mohd. Yousuf Miya, (1996) 9 SCALE 65 (Criminal Proceeding v.
Disciplinary Proceedings)
• Facts:
• The present Special Leave Petition arose from the judgment awarded
by the Division bench of the Andhra Pradesh High court arising out
of W.P. No. 612 of 1996.
• The disciplinary proceedings were initially initiated by the
appellants on the grounds that on September 15,1995 while the
Corporation Double decker vehicle was driven by the respondent
near Gandhi hospital in Hyderabad an accident was caused in which
a cyclist had died.
• The accident was argued to be caused due to a lack of anticipation
in the course of his driving.
• Following this an action was initiated with relation to the
misconduct and an enquiry was ordered for misconduct under the
Regulation 28(ix) of the employees conduct rules, 1963 by the
appellants.
• Simultaneously, the police had launched prosecution for an offence
which shall be punishable under section 304, Part II of the IPC
and certain under section 338 IPC which was thereby pending trial.
• This lead to the respondents to file a writ petition under the
High court to stay the departmental proceedings, the Judge stayed
the same.
• On appeal the same was confirmed by the Division bench of the High
• Whether departmental proceeding should be
stayed when criminal proceedings for the same
matter is pending before a court of law?
• Holding:
• There is no legal bar for both criminal and
departmental proceedings to go on simultaneously, the
staying of disciplinary proceedings, is a matter to be
determined having regard to the facts and circumstances
of a given case and that no hard and fast rules can be
enunciated in that behalf.
• The standard of proof, the mode of enquiry and the
rules governing the enquiry and trial in both the cases
are entirely distinct and different. Staying of
disciplinary proceedings pending criminal proceedings,
should not be a matter of course not a considered
decision, Even if stayed at one stage the decision may
require reconsideration if the criminal case gets
unduly delayed.
• The nature of evidence in criminal trial is entirely
different from the departmental proceedings. In the
former, prosecution is to prove its case beyond
• The standard of proof in the departmental proceedings
is not the same as of the criminal trial.
• The evidence also is different from the standard point
of Evidence Act.
• The evidence required in the departmental enquiry is
not regulated by Evidence Act. Under these
circumstances, what is required to be seen is whether
the departmental enquiry would seriously prejudice the
delinquent in his defence at the trial in a criminal
case.
• It is always a question of fact to be considered in
each case depending on its own facts and circumstances.
In this case, we have seen that the charge is failure
to anticipate the accident and prevention thereof.
• It has nothing to do with the culpability of the
offence under Sections 304A and 338 IPC. Under these
Circumstances the High Court was not right in staying
• “The nature of evidence in criminal trial is
entirely different from the departmental
proceedings. In the former, prosecution is to prove
its case beyond reasonable doubt on the touchstone
of human conduct. The standard of proof in the
departmental proceedings is not the same as of the
criminal trial. The evidence also is different from
the standard point of Evidence Act. The evidence
required in the departmental enquiry is not
regulated by Evidence Act. Under these
circumstances, what is required to be seen is
whether the departmental enquiry would seriously
prejudice the delinquent in his defence at the trial
in a criminal case. It is always a question of fact
to be considered in each case depending on its own
facts and circumstances.”
• Managing Director, ECIL V. B. Karunakar AIR
1994 SC 1074

• This case is about disciplinary proceedings

that an enquiry officer or a disciplinary
authority undertakes against a delinquent
employee. The case revolves around questions of
the procedure of a disciplinary proceeding and
a right to proper representation within the
same.
• Whether the report of the Inquiry Officer/authority who/which is appointed
by the disciplinary authority to hold an inquiry into the charges against
the delinquent employee is required to be furnished to the employee to
enable him to make proper representation to the disciplinary authority
before such authority arrives at its own finding with regard to the guilt
or otherwise of the employee and the punishment?
• Whether the report should be furnished to the employee even when the
statutory rules laying down the procedure for holding the disciplinary
inquiry are silent on the subject or are against it?
• Whether the report of the Inquiry Officer is required to be furnished to
the delinquent employee even when the punishment imposed is other than the
major punishment of dismissal, removal or reduction in rank?
• Whether the obligation to furnish the report is only when the employee
asks for the same or whether it exists even otherwise?
• Will it apply to all establishments- Government and non- Government,
public and private sector undertakings?
• What is the effect of the non-furnishing of the report on the order of
punishment and what relief should be granted to the employee in such
cases?
• Provisions applicable:

• Section 13A in The Industrial Employment (Standing Orders) Act, 1946

• 13A. Interpretation, etc., of standing orders.—If any question arises as
to the application or interpretation of a standing order certified under
this Act, any employer or workman 27 [or a trade union or other
representative body of the workmen] may refer the question to any one of
the Labour Courts constituted under the Industrial Disputes Act, 1947 (14
of 1947), and specified for the disposal of such proceeding by the
appropriate Government by notification in the Official Gazette, and the
Labour Court to which the question is so referred shall after giving the
parties an opportunity of being heard, decide the question and such
decision shall be final and binding on the parties.] state amendment
Maharashtra: Gujarat.—In section 13A, after the words “standing order” and
in the marginal note thereto after the words “standing orders”, insert the
words “model standing order or amendments”; and after the word “workman”,
insert “or any prescribed representatives of workmen”. [Vide Bombay Act 21
of 1958, sec. 17 (w.e.f. 15-1-1959); Act 11 of 1960, sec. 87 (w.e.f. 1-5-
1960)].

• Article 311 in The Constitution Of India 1949

• Article 226, 14 and 21 , principles of natural justice.
• Analysis:

• Issue 1:
• Article 311 of the Constitution clearly states that a delinquent employee
must be presented with the charges against him and be given an opportunity
to be heard. The court went into the importance of upholding the
principles of natural justice which, coupled with the articles of the
constitution, explained the necessity of allowing a delinquent employee an
opportunity to be heard.

• Issue 2:
• The report should be furnished to the employee even if statutory rules are
silent about it, as it is in the constitution. Furthermore, the court held
that if a statutory provision exists that is against the implications of
this article, it will be invalid. Therefore, the report must be furnished
to the employee under any circumstance. Section 13A of the The Industrial
Employment (Standing Orders) Act, 1946 clearly states that the accused
parties must be given an opportunity to be heard. Which shows that the
Industrial Employment act is adhering to the principles of natural
justice. Therefore, a standing order cannot be violative of the same.
• Issue 3:
• The court held that the report must be furnished
even when the punishment imposed is other than the
major punishments of dismissal, removal or
reduction in rank IF the enquiry officer is NOT
the disciplinary authority.
• Issue 4:
• The obligation to furnish the report exists even
if the employee does not ask. The court went on to
add that the mere fact that the employee did not
ask for the report does not mean the employee
waives his/her right to receive one.
• Issue 5:
• The court clearly stated that it will apply to all
establishments.
• Issue 6:
• The non-furnishing of the report would be a denial of the
rights that the delinquent employee has and thus, would be
violating multiple articles of the constitution and the
principles of natural justice. The court looked into the
case of Union of India vs. Mohd. Ramzan Khan and declared
that any order passed without furnishing a copy of the
inquiry officer’s report to the delinquent employee would be
void. The relief, therefore, that must be granted depends on
the facts and circumstances of each case. The court held
that, merely due to the fact that the report was not
furnished, if the entire order is set aside, that would lead
to an “unnatural expansion of natural justice”. The
delinquent employee must receive the order, get a chance to
present opposing arguments and if, after that, the authority
still believes the result of the order would remain
• Depot Manager, Andhra Pradesh State Road Transport
Corporation V. Mohd. Yousuf Miya (1996) 9 SCALE 65
• Facts:
• A writ petition is filed by Petitioner, challenging the
order of his dismissal from the Punjab national bank on
October 8, 1988. He was dismissed based on an enquiry
conducted by an enquiry officer.
• The learned Single Judge, inter alia, accepted each one
of the contentions raised by the petitioner and held
that the disciplinary authority did not forward to the
Inquiring Authority the documents and lists of
witnesses before commencing the enquiry against the
petitioner and accepted each one of the contentions
raised by the petitioner and allowed the writ petition.
• On appeal, the Division bench reversed the decision of
the learned Single Judge and dismissed the writ
petition. Hence, this appeal by special leave.
• Issue:
• Whether, disallowing to adduce two witnesses
will be invalid if all the documents were
provided to the employee?
• Holding:

• Disallowing to adduce two witnesses will not be

invalid if all the documents were provided to
the Petitioner.
• Non-furnishing of enquiry report to the
Petitioner would not vitiate the enquiry.