STANDING ORDERS

INTRODUCTORY NOTE

• What do you think would happen if there were no clear rules or policies in your workplace?
 INTRODUCTORY NOTE

• Have you ever worked in a place where a rule felt unfair or confusing?
 INTRODUCTORY NOTE
• What are standing orders?
 INTRODUCTORY NOTE
• What are standing orders?

• Standing orders in labour laws refer to a set of rules governing the terms and conditions of
employment, the rights and responsibilities of both employers and employees, and
disciplinary procedures within an industrial establishment.

• Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage
rates.
• Termination of employment, and the notice thereof to be given by employer and workmen
 INTRODUCTORY NOTE
• Prior to the enactment of the Industrial Employment (Standing Orders) Act 1946 the
employers were free to regulate conditions of service of the workmen according to their own
whims
• Employment was governed by contracts (express or implied)
• Conditions not well defined and suffered from doubt and ambiguity
• Concerns: Workmen who were not even aware of their conditions of service, which often
were not laid down in writing , therefore, be dealt with in the manner as the employer may
decide from time to time in his absolute discretion
 1940: BOMBAY TEXTILE LABOUR ENQUIRY
COMMITTEES RECOMMENDATION

• “There is no fear which haunts an industrial worker more constantly than the fear of
losing his job as there is nothing which he prizes more than economic security. The
fear of being summarily dismissed for even a slight breach of rules of rules of
discipline or for interesting himself in trade union activity disturbs his mind. It is a
notorious fact that dismissals of workers have been the originating causes of not a
few industrial disputes and strikes. The provision of effective safeguards against
unjust and wrong dismissals is, therefore, in the interest as much of the industry as of
the workers”
 1946: THE LABOUR INVESTIGATION
COMMITTEE NOTED THESE STATE OF AFFAIRS
AND OBSERVED:
• An industrial worker has the right to know the terms and conditions under which he is
employed and the rules of discipline which he is expected to follow. Broadly speaking, in
Indian industry the rules of service are not definitely set out, and like all unwritten laws,
where they exist they have been very elastic to suit the convenience of employers. No doubt,
several large scale industrial establishments have adopted standing orders and rules to
govern the day-to-day relations between the employers and workers; but such standing
orders or rules are merely one sided. Neither worker’s organizations nor Government are
generally consulted before these orders are drawn up and more often than not, they have
given the employers the upper hand in respect of all disputable points”. (PP.113 of Report)
 UNIFORMITY IN TERMS AND
CONDITIONS OF EMPLOYMENT IN
INDUSTRIAL ESTABLISHMENT
 INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) ACT PASSED IN 1946
• Statement of Objects and Reasons: “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”.
• Preamble- require employers in industrial establishments formally to “Conditions of
employment of workers in industrial establishment”
• The provision applies to industrial establishments where 100 or more workers are employed
or were employed at any time during the past 12 months.
• the appropriate government may choose to apply the Act to establishments with fewer than
100 employees by issuing a notification in the Official Gazette, with at least two months'
prior notice.
 DEFINING?

DEFINE WITH SUFFICIENT PRECISION

THE CONDITIONS OF EMPLOYMENT
AND TO MAKE THOSE CONDITIONS
KNOWN TO THE WORKMEN
Standing orders define conditions of employment and feature such items as:
 Classification of workmen- permanent, temporary, badly etc
 Manner of intimating to workmen periods and hours of work, holidays, paydays and
wages;
 Shift working
 Attendance and late coming
 Conditions of, procedure in applying, and the authority which may grant leave and
holidays
 Requirement to enter premises by certain gates and liability to search;
 Closing and reopening of sections of the establishment
 Temporary stoppages of work
 Rights and liabilities arising there from
 Recruitment
 Termination of services
 Acts or omissions that constitute misconduct
 Punishments and grievance procedure
 And among other things, the conditions, amounts and time for the payment of
 DEFINITIONS
• Appellate Authority- appointed by appropriate govt or industrial court
• Appropriate Government
• Certifying Officer-Labour Commissioner, regional labour Commissioner or
any officer appointed by appropriate government
• Employer
• Industrial establishment
• Standing orders- rules related to matters mentioned in Schedule of the
Act
• The employer of the industrial establishment is required to submit draft standing
orders, i.e., “rules relating to matters set out in the schedule” proposed by the
employer for adoption in his industrial establishment
• The drafting standing orders should contain every matter set out in the schedule of
the Act with the additional matter prescribed by the government
• Where model standing orders have been prescribed the draft submitted by the
employers must be in conformity with the model standing orders provided U/S 15 (2)
(b)
• A model standing order, commonly known as an MSO, is a set of rules, regulations,
and obligations that are drafted by the Central Government to regulate the conditions
of employment of workers in industrial establishments.
• from the time the Act becomes applicable to an industrial establishment until the date
the final standing orders are certified and come into operation under Section 7 of the
Act, the model standing orders prescribed under the Act will be deemed adopted in
that establishment during the interim period.
• Section 3- Submission of draft standing orders
• The employer must submit five copies of the draft standing orders to the Certifying
Officer within six months from the date when the Act becomes applicable to their
industrial establishment
• Provision shall be made in such draft for every matter set out in the Schedule which
may be applicable to the industrial establishment, and
• where Model standing orders have been prescribed shall be, so far as is practicable, in
conformity with such model.
• The submission must include a statement with required details about the workers
employed in the industrial establishment.This statement should also mention the trade
union to which the workers may belong, if applicable.
• Employers in similar industrial establishments are allowed to submit a joint draft of
standing orders
• Section 4- Conditions for certification of standing orders.
• Standing orders shall be certifiable under this Act if—
• provision is made therein for every matter set out in the Schedule which is applicable
to the industrial establishment, and
• (b) the standing orders are otherwise in conformity with the provisions of this Act ;
• and it [shall be the function] of the Certifying Officer or appellate authority to
adjudicate upon the fairness or reasonableness of the provisions of any standing
orders
• Section 5- Certification of standing orders
• Upon receiving the draft standing orders under Section 3, the Certifying Officer must
send a copy of the draft to the trade union representing the workmen.
• If there is no trade union, the draft must be sent to the workmen in a prescribed
manner.
• A notice in a prescribed form must accompany the draft, giving the workmen 15 days
to submit objections, if any, to the draft standing orders.

• The Certifying Officer must provide an opportunity of being heard to both the
employer and the trade union (or representatives of the workmen).
• The Certifying Officer must decide if any modifications or additions to the draft are
required to make the standing orders certifiable under the Act.
• Section 5- Certification of standing orders
• Once the required modifications (if any) are made, the Certifying Officer certifies the
draft standing orders.
• The certified standing orders, along with a written order detailing any modifications
made, must be sent to both the employer and the trade union (or workmen's
representatives) within seven days of certification.
• Section 6- Appeals
• Any employer, workmen, trade union, or other prescribed representatives of the
workmen, who are aggrieved by the order of the Certifying Officer under Section
5(2), have the right to appeal.
• The appeal must be filed within thirty days from the date on which copies of the
certified standing orders are sent.
• Section 6- Appeals
• The appellate authority will review the standing orders and has the power to:
• Confirm the standing orders in the form certified by the Certifying Officer, or
• Amend the standing orders by making necessary modifications or additions to make
them certifiable under the Act.
• The decision of the appellate authority is final and binding.

• The appellate authority must send copies of its order to the Certifying Officer, the
employer, and the trade union or prescribed representatives of the workmen within
seven days of the order.
• If any amendments are made, the appellate authority must provide authenticated copies
of the amended standing orders.
• Section 7- Date of Operation of Standing Orders
• come into effect 30 days after authenticated copies of them are sent under Section
5(3) of the Act.
• Appeal- will come into effect 7 days after copies of the appellate authority's order are
sent under Section 6(2).
• Section 8- 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 maintained for the purpose, and
the Certifying Officer shall furnish a copy there of to any person applying there for
on payment of the prescribed fee.
• Section 9- Posting of standing orders.
• The employer must prominently post the certified standing orders in English and in
the language understood by the majority of the workmen.
• These standing orders must be displayed on special boards at or near the entrance
where most workers enter the industrial establishment.
• The standing orders should also be posted in all departments where workers are
employed, ensuring that the workforce can easily access and read them.
• Section 10- Duration and modification of standing orders
• Standing orders that have been certified under the Act cannot be modified for six
months after their certification or the date of their last modification unless there is an
agreement between the employer and workmen (or their representative body, such as
a trade union).
• Section 10- Duration and modification of standing orders
• After the six-month period, either the employer or the workmen (or their trade
union/representative body) can apply to the Certifying Officer for modifications to
the standing orders.
• The application must include five copies of the proposed modifications.
• If the modifications are agreed upon between the employer and the workmen (or
trade union/representative body), a certified copy of that agreement should also be
submitted with the application.

• The same procedure that applies to the original certification of standing orders will
apply to the certification of modifications proposed under sub-section (2).
• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471
• In accordance with the provisions of the Industrial Employment (Standing Orders) Act,
1946, the appellant (The Rohtak Hissar District Electric Supply Co. Ltd. and Amitabh
Textile Mills Ltd.) prepared draft standing orders in consultation with its employees and
submitted the same to the Certifying Officer for certification.
• Since the appellant's workers had not formed any union, three. representatives of the
workmen were elected to represent them at the certification proceedings.
• These representatives took no objection to the draft standing orders submitted by the
appellant.
• The Certifying Officer examined the reasonableness of the provisions contained in the
draft Standing Orders made several changes in the draft and accordingly certified them.
• The appellant's appeal to the Appellate Authority was dismissed.

• Therefore, SLP before the Supreme Court

• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471
• In accordance with the provisions of the Industrial Employment (Standing Orders) Act,
1946, the appellant (The Rohtak Hissar District Electric Supply Co. Ltd. and Amitabh
Textile Mills Ltd.) prepared draft standing orders in consultation with its employees and
submitted the same to the Certifying Officer for certification.
• Since the appellant's workers had not formed any union, three. representatives of the
workmen were elected to represent them at the certification proceedings.
• These representatives took no objection to the draft standing orders submitted by the
appellant.
• The Certifying Officer examined the reasonableness of the provisions contained in the
draft Standing Orders made several changes in the draft and accordingly certified them.
• The appellant's appeal to the Appellate Authority was dismissed.

• Therefore, SLP before the Supreme Court

• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471

• The contention that the procedure adopted by the certifying authorities in dealing
with the question of the fairness or reason ableness of the draft Standing Orders is
invalid, must fail.
• Though, originally the jurisdiction of the certifying officer and the Appellate
Authority was very limited., s. 4 as amended by Act 56 of 1956 has imposed upon the
certifying officer or the appellate authority the duty to adjudicate upon the fairness or
the reasonableness of the provisions of any Standing Orders and thus the jurisdiction
of these authorities and the scope of inquiry have become wider.
• The Act contemplates that the Standing Orders must cover matters initially included
in the Schedule as well as matters which may be added to the Schedule by the
appropriate Government in exercise of the authority conferred on it by s.15.
• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471

• Another contention- that the Model Standing Orders themselves were invalid because they overlapped
with matters already covered by the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act,
1947.

• Held:
• It cannot be said that since an elaborate machinery has been established by the U.P. Industrial Disputes
Act, 1948 any attempt by the certifying authorities to devise detailed provisions in respect of matters
covered by the First and Second Schedules to the U.P. Act would trespass upon the provisions of that
Act.
• The scope of the provisions of the two Acts and the fields covered by them are not the same. While the
Industrial Employment (Standing Orders) Act purports to secure to industrial employees clear and
unambiguous conditions of their employment, the scheme of the U.P. Act is to deal with problems
posed by Industrial Disputes which have actually arisen or are apprehended.
• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471

• While employee consent is relevant, it does not override the authority’s responsibility
to judge the fairness of the Standing Orders. Authorities must ensure that even if
employees agree to the terms, they do not disadvantage the employees due to lack of
organization or representation.
• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471

• The draft Standing Orders cannot 'relate to outside the Schedule to the Act.
• By s. 3 (2) of the Act the employers have to frame draft Standing Orders and these
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 be unfair and unreasonable to make provision for a
particular item, it would be competent to the authorities not to frame draft Standing
Orders in that behalf, 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.
• Rohtak and Hissar District Supply Co. Ltd. v State of U.P. AIR 1966 SC 1471

• The wording of s. 3 (2) of the Act indicates that the appropriate authority may permit
departure from the Model Standing Orders if it is satisfied that insistence upon such
conformity may be impracticable.
• Associated Cement Co. Ltd. V. Workmen (1964) 3 SCR 652
• An industrial dispute arose in regard to the dismissal of certain workmen.
• It was referred for adjudication to the industrial Tribunal.
• There were three domestic enquiries.

• Incident of May 1, 1952: Malak Ram, one of the workers, allegedly engaged in rowdy
behavior at a cinema show organized by the management for the workers. This led to the
cancellation of the show, after which a charge-sheet was issued, and an inquiry conducted.
• Incident of August 12, 1952: Mehnga Ram, Janak Raj, and Daulat Singh allegedly
stopped workers from entering the factory after they had clocked in. They were accused
of shouting slogans, resulting in a half-hour work stoppage.
• Incident of October 14 & 20, 1952: Several workers, including Mehnga Ram, Janak Raj,
Vishwa Nath, and Daulat Singh, were accused of organizing strikes and preventing
workers from entering the factory, along with shouting hostile slogans.
• Associated Cement Co. Ltd. V. Workmen (1964) 3 SCR 652

• The enquiries were challenged on the ground that they were held in violation of the
principle of natural justice and the procedure adopted in conducting them was not fair.
• The Industrial Tribunal came to the conclusion that the enquiries were not conducted in
accordance with the principle of natural justice.
• Associated Cement Co. Ltd. V. Workmen (1964) 3 SCR 652

• Court agreed with the Tribunal’s decision and held:

• (i) that the enquiry conducted by the eye witnesses was not in accordance with the principles of
natural justice as the enquiry officers had themselves witnessed the alleged misconduct of the
workmen. Domestic enquiries should be conducted by such officers of the employer who are not
likely to import their personal knowledge into the enquiry proceedings.
• (ii) That in domestic enquiries, the employer should firstly lead evidence against the workman
charged, give him an opportunity to cross-examine the witnesses and then the workman should be
asked to give an explanation if he so desires in regard to the evidence led against him.
• (iii) That the rule that a witness should not be disbelieved on the ground of an inconsistency
between his statement and that contained in a document unless he is given a chance of explaining
that document, cannot be treated as a mere technical rule of evidence. The principle on which that
rule is based is one of natural justice.
• (iv) That the evidence given in an enquiry against one workman cannot be accepted as evidence in
an enquiry against another for the reason that the evidence given in the former enquiry was not
recorded in the presence of the workman concerned with the second enquiry and hence had no
opportunity to test that evidence by cross-examination.
• Tata Oil Mills Co. Ltd. V. Workmen, AIR 1965 SC 155

• Tata Oil Mills Co. Ltd., a public limited company in the soap and toilet articles industry,
with a factory in Tatapuram, Ernakulam
• On November 12, 1955, Raghavan and another employee, Mathews, assaulted C. A.
Augustine, the Chargeman, outside the factory.
• The assault was motivated by Raghavan’s opposition to Augustine's support for an
incentive bonus scheme, with both involved in rival union factions.
• 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 the dismissal of R but not that of M.
• Thereupon R was dismissed.
• The respondent raised an industrial dispute in regard to the propriety and validity of the
said dismissal.
• Tata Oil Mills Co. Ltd. V. Workmen, AIR 1965 SC 155

• Standing Order 22(viii): Defines misconduct including drunkenness, fighting, and

disorderly behavior within or outside the factory.

• Tribunal ruled that the assault was a private matter and not covered by Standing Order
22(viii) since it occurred outside the factory and was related to personal disputes.
• Domestic enquiry was not fairly conducted. PNJ not followed.
• Decision of domestic enquiry malafide because the case was being tried in a criminal
court and employed should have stayed the domestic proceedings till the decision of the
court.
• Tata Oil Mills Co. Ltd. V. Workmen, AIR 1965 SC 155

• Held:

• 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).
• The tribunal wrongly concluded that the Enquiry Officer did not provide a fair
opportunity for Raghavan to present his case.
• The court noted that although it’s advisable to stay domestic proceedings pending a
criminal trial, failure to do so does not invalidate the domestic enquiry.
• Crescent Dyes & Chemicals Ltd. V. Ram Naresh Tripathi (1992) 3 SCALE 518

• Ram Naresh Tripathi, the delinquent workman, was charged with misconduct.
• During the domestic inquiry, he requested to be defended by Talraja, an office bearer of
the Bombay Mazdoor Union.
• However, the inquiry officer denied this request because Talraja was neither a member of
a recognized nor unrecognized union in the employer’s establishment.
• Crescent Dyes & Chemicals Ltd. V. Ram Naresh Tripathi (1992) 3 SCALE 518

• Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act,
1971
• Section 20(1)(d): Only recognized unions have the right to represent employees in
domestic inquiries.
• Section 21: In the absence of a recognized union, an employee may represent themselves,
but representation by others is restricted.
• Section 22(ii): Unrecognized unions can only represent their members in domestic
inquiries if authorized by the State Government.

• Standing Order No. 25 enumerates acts constituting misconduct.

• Standing Order No. 26(2) entitles a delinquent (accused employee) to be defended only
by a clerk or workman from the same department.
• Crescent Dyes & Chemicals Ltd. V. Ram Naresh Tripathi (1992) 3 SCALE 518

• The Labour Court and later the Industrial Court upheld the inquiry officer’s decision,
ruling that the dismissal did not violate principles of natural justice, as Talraja was not
allowed to represent the delinquent based on Section 22(ii) of the Act.

• The delinquent moved to the High Court under Article 227 of the Constitution, arguing
that he was denied the right to choose his defense, which violated principles of natural
justice.

• The High Court agreed, ruling that the refusal to allow Talraja as a representative
amounted to unfair labor practice
• took a broader view of the situation, arguing that the principles of natural justice override
statutory limitations.
• Crescent Dyes & Chemicals Ltd. V. Ram Naresh Tripathi (1992) 3 SCALE 518

• Supreme Court’s Ruling:

• The question arises whether the right to be heard implies the right to be represented by
counsel or an agent of the delinquent’s choice.
• There is no absolute right to such representation unless provided by law.
• Legal position:
• In Kalindi (N) v. Tata Locomotive & Engineering Co., the court held that a workman has
no right to union representation unless allowed by standing orders.
• Similarly, in Brooke Bond India (P) Ltd. v. Subba Raman, refusal to allow legal or
external representation did not violate natural justice.
• In The Dunlop Rubber Co. v. Workmen, the court upheld that representation by
unrecognized union members was not allowed as per standing orders.
• Crescent Dyes & Chemicals Ltd. V. Ram Naresh Tripathi (1992) 3 SCALE 518

• Supreme Court’s Ruling:

• Representation by counsel or agent can be regulated, restricted, or denied by statutes or

standing orders.
• The right to be heard, a principle of natural justice, does not inherently include the right to
external representation unless explicitly provided for.
• In this case, the Enquiry Officer’s refusal to allow Talraja to represent the delinquent was
justified by the standing orders.
• The High Court’s judgment was erroneous in setting aside the dismissal based on a
supposed violation of natural justice.
• Rajasthan State Road Transport Corporation and Another v Bal Mukund Bairwa
(2009) 4 SCC 299

• The main issue is whether civil courts or only industrial tribunals have the authority to
hear cases where employees are challenging their termination by the Rajasthan State Road
Transport Corporation on the grounds that it violated natural justice principles

• In 1965, the Corporation framed Standing Orders for its employees under the Industrial
Employment (Standing Orders) Act, 1946, certified under the law. These Standing Orders
also cover termination and suspension procedures, ensuring legal backing for actions
against employees.
• Section 9 of the Code of Civil Procedure (CPC) gives civil courts broad jurisdiction to try
all civil suits unless explicitly barred by law
• Rajasthan State Road Transport Corporation and Another v Bal Mukund Bairwa
(2009) 4 SCC 299

• Court clarified: Disputes involving industrial laws may not fall under civil court
jurisdiction unless they involve fundamental rights or statutory violations

• If no enquiry is conducted, it violates:

• Statutory Regulations.
• Constitutional fundamental rights

• In such cases, a civil suit can be filed to declare the termination illegal.
• However, if the suit is based solely on the Industrial Disputes Act or related laws, a civil
suit may not be permissible unless procedural or common law/natural justice violations
are also alleged.
• Shahdara –Saharanpur Light Railway Company Ltd. v Shahdara-Saharanpur
Railway Workers’ Union (1969

• The appellant-company had its standing orders certified in 1962.

• the respondent union sought further modifications in 1965.
• Chief Labour Commissioner certified modifications
• Challenged by Company
• Shahdara –Saharanpur Light Railway Company Ltd. v Shahdara-Saharanpur
Railway Workers’ Union (1969

• Standing Order 9, Clause (a): Initially, it allowed termination of a worker with one
month's notice or pay in lieu. The modification required the employer to give reasons for
termination, to be recorded and communicated to the worker unless deemed inadvisable
by the employer.
• Standing Order 12, Clause (A): Previously, appeals against penalties imposed by the
General Manager could take months. The modification imposed a 60-day limit for
disposing of such appeals.
• Standing Order 11(vii), Clause (a): This allowed removal of workers for inefficiency. The
modification required the employer to offer alternate employment to workers removed
due to physical unfitness, provided the alternative was available and suitable.
• Standing Order 11(vii), Clause (c): This clause mandated that workers facing dismissal be
provided with a copy of the enquiry findings. The modification added the requirement for
a separate show-cause notice before removal.
• Shahdara –Saharanpur Light Railway Company Ltd. v Shahdara-Saharanpur
Railway Workers’ Union (1969

• Jurisdictional Scope: The employer argued that Section 10(2) allowed modifications only
if there was a change in circumstances since the last certification of the standing orders.
• Reasonableness and Fairness: The appellant argued that the modifications were neither
reasonable nor fair
• Res Judicata: The employer invoked a principle akin to res judicata, suggesting that
finality under Section 6 precluded frequent modifications unless necessitated by new facts
or circumstances.s
• Shahdara –Saharanpur Light Railway Company Ltd. v Shahdara-Saharanpur
Railway Workers’ Union (1969

• (1) Change of Circumstances: The court held that a change of circumstances is not a
prerequisite for applying for modifications under Section 10(2). The 1956 amendment
allowed individual workers to request modifications based on fairness and
reasonableness, independent of previous conditions.
• (2) Res Judicata: The concept of res judicata in industrial matters does not preclude new
applications for modification based on fairness and reasonableness.
• Shahdara –Saharanpur Light Railway Company Ltd. v Shahdara-Saharanpur
Railway Workers’ Union (1969

• (3) Reasonableness and Fairness of Modifications:

• Modification (i): The requirement to give reasons for discharge was seen as enhancing
transparency and fairness, and the court found no reason to overturn it.
• Modification (ii): The timeline for resolving appeals was considered reasonable to ensure
prompt resolution of disputes.
• Modification (iii): Offering alternative employment was seen as a fair measure for
workers affected by physical unfitness.
• Modification (iv): The requirement for a second show cause notice was considered
unnecessary as it was not a standard practice in industrial law.
• Kusheshwar Dubey V. Bharat Coking Coal Ltd., AIR 1988 SC 2118

• The appellant worked as an electrical helper in Balihari Colliery (Respondent No. 1).
• In 1986, the appellant was accused of physically assaulting a supervising officer, S.K.
Mandal.
• As a result, the appellant faced both disciplinary proceedings and a criminal prosecution
simultaneously.

• The appellant sought an injunction in the Munsif court in Dhanbad to stay the disciplinary
proceedings until the criminal trial was concluded.
• Granted by the Munsif Court
• Kusheshwar Dubey V. Bharat Coking Coal Ltd., AIR 1988 SC 2118

• Respondent moved to the Patna High Court, which ruled that the injunction was improper
and set aside the lower court's orders on 7.7.1987.
• The High Court held that employers could proceed with departmental proceedings even if
a criminal case is pending, as there was no legal bar to such parallel proceedings.

• Case went to the Supreme Court

• Kusheshwar Dubey V. Bharat Coking Coal Ltd., AIR 1988 SC 2118

• appellant’s counsel argued that disciplinary action should be stayed until the criminal case
was over, citing previous judgments-
• Delhi Cloth and General Mills Ltd. v. Kushal Bhan (1960) –employers often stay
inquiries pending criminal trials.
• Tata Oil Mills Co. Ltd. v. Its Workmen (1964) – endorsed the staying of domestic
inquiries until criminal trials were complete.

• Respondents argued that there was nothing wrong with parallel disciplinary and criminal
proceedings.
• Cited previous judgements.
• Kusheshwar Dubey V. Bharat Coking Coal Ltd., AIR 1988 SC 2118

• Supreme Court Held:

• Acknowledged conflicting judicial opinions on simultaneous disciplinary and criminal

proceedings.
• Refused to establish a universal rule, emphasizing case-by-case judicial discretion
• “it is neither possible nor advisable to evolve a hard and fast, straight- jacket formula
valid for all cases and of general application without regard to the particularities of the
individual-situation.”
• For this case, the Supreme Court sided with the appellant.
• “In the instant case, the criminal action and the disciplinary proceedings are grounded
upon the same set of facts.
• restoring the trial court's injunction order and awarding costs of Rs. 2000 to the appellant.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• The respondent, while driving a double-decker vehicle for the Corporation near Gandhi
Hospital in Hyderabad on September 15, 1995, was involved in an accident resulting in a
cyclist's death, attributed to a lack of anticipation on the driver's part.
• The respondent was accused of not anticipating and preventing the accident, constituting
misconduct under Regulation 28(ix) of the Employees Conduct Rules, 1963.
• Criminal proceedings under Section 304, Part II of the Indian Penal Code (IPC) (culpable
homicide not amounting to murder) and Section 338 IPC (causing grievous hurt by an act
endangering life or personal safety) were also initiated against the respondent.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• High Court decision:

• The respondent filed a writ petition to stay the departmental proceedings, arguing that it
would prejudice his defense in the criminal case.
• A single judge initially stayed the disciplinary proceedings, and the Division Bench of the
High Court confirmed this decision.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• Appeal to the Supreme Court

• appellants argued that the stay of the disciplinary proceedings was not justified as the
issues in the criminal and departmental proceedings were different.
• In the criminal case, the focus is on the respondent’s culpability in rash and negligent
driving, while in the disciplinary proceedings, it is about misconduct in failing to
anticipate and prevent the accident.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• The Supreme Court referred to several previous rulings, including:

• State of Rajasthan vs. B.K. Meena: No legal bar exists for simultaneous criminal and
departmental proceedings unless the case involves complicated questions of law and fact.
• Kusheshwar Debey vs. Bharat Coking Coal Ltd.: Departmental proceedings can be
stayed only in grave cases.
• Food Corporation of India vs. George Varghese: Disciplinary proceedings can be
initiated even after acquittal in a criminal case.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• Established Legal Principles

• There is no absolute rule that departmental proceedings must be stayed while criminal
proceedings are ongoing.
• Departmental and criminal proceedings have different objectives:
• Criminal Case: Determines guilt for violating public law and prescribes punishment.
• Departmental Enquiry: Focuses on maintaining discipline and service efficiency, dealing
with misconduct.
• The standard of proof is higher in criminal cases (beyond reasonable doubt) compared to
departmental proceedings (preponderance of probability).
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• Considerations for Staying Departmental Proceedings:

• Disciplinary proceedings should be stayed only if they would cause significant prejudice
to the defense in the criminal trial.
• In cases of undue delay in criminal trials, disciplinary proceedings should continue to
avoid administrative inefficiency and lengthy suspensions of the disciplinary process.
• Depot Manager, Andhra Pradesh State Road Transport Corporation V. Mohd.
Yousuf Miya, (1996) 9 SCALE 65

• Held:

• The charge in the departmental proceedings (failure to anticipate and prevent the
accident) is distinct from the charges in the criminal case (culpability for the accident
under Sections 304A and 338 IPC).
• there was no significant overlap between the two proceedings that would prejudice the
respondent.
• The High Court’s decision to stay the departmental proceedings was therefore incorrect
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• The respondent, an employee, was charged with alleged misconduct by the appellant
employer.
• An Enquiry Officer was appointed to conduct a disciplinary enquiry against the
respondent.
• Before the enquiry commenced, the respondent requested permission to engage a legal
practitioner for his defense.
• The Chairman of the appellant rejected this request.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• Simultaneously, the Chairman appointed two legally trained officers, Shri R.K. Shetty
(Legal Adviser) and Shri A.B. Chaudhary (Junior Assistant Legal Adviser), as Presenting
Officers to represent the employer in the enquiry.
• A copy of the rejection letter was sent to the respondent, notifying him of the appointment
of the Presenting Officers.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• Due to the denial of legal representation, the respondent sought permission for Shri V.V.
Nadkarni to assist in his defense.
• This request was granted, allowing Nadkarni, who was not a legal practitioner, and a
fellow employee to represent the respondent.

• The disciplinary enquiry began on April 13, 1976.

• On May 8, 1976, Regulation 12(8) of the Bombay Port Trust Employees Regulations
came into force.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• Regulation 12(8) stated that an employee could not engage a legal practitioner unless:
• The Presenting Officer appointed by the disciplinary authority was a legal practitioner, or
• The disciplinary authority permitted legal representation, considering the circumstances.

• Despite the new regulation, neither the Enquiry Officer nor the Chairman reconsidered
the respondent's request for legal representation.
• The enquiry proceeded with the respondent unrepresented by a legal practitioner, while
the employer was represented by legally trained officers.

• The enquiry concluded with a decision to dismiss the respondent from service based
on the findings.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• The respondent filed Petition in the Bombay High Court, challenging the dismissal.
• A Single Judge of the High Court quashed and set aside the dismissal order.

• The court held that the refusal to allow legal representation, while the employer was
represented by legal professionals, violated the principles of natural justice.
• It was determined that the respondent was denied a reasonable opportunity to defend
himself.

• A Division Bench of the High Court dismissed the appeal without a detailed hearing.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• SLP in Supreme Court

• The key question was whether denying the respondent legal representation, while the
employer was represented by legally trained Presenting Officers, violated natural justice
principles.
• The Court analyzed traditional views on domestic enquiries and the evolving legal
landscape.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• Brooke Bond India (Pvt.) Ltd. v. Subba Raman and Dunlop Rubber Co. v.
Workmen, which held that legal representation was not essential in domestic enquiries.
• C.L. Subramaniam v. Collector of Customs, Cochin, where it was held that refusal to
allow legal representation when the employer was legally represented violated natural
justice.
• Lord Denning's observation in Pett v. Greyhound Racing Association Ltd.,
advocating for legal representation when a person's livelihood or reputation is at stake.
• The Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath
Nadkarni AIR 1983 SC 109

• Held:

• The Court recognized the imbalance created when an employer is represented by legally
trained personnel while the employee is denied similar representation.
• Denying the respondent's request for legal representation constituted a denial of a
reasonable opportunity to defend himself.
• This denial violated the essential principles of natural justice.
• The presence of legally trained Presenting Officers for the employer necessitated allowing
the respondent legal representation to ensure a fair enquiry.
• The Court noted that after Regulation 12(8) came into effect, the obligation to permit
legal representation became more pronounced.

• The Court affirmed the High Court's decision to quash the dismissal order.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626
• BPCL, incorporated in 1976, submitted Draft Standing Orders in 1985 to the Certifying
Officer for certification under the Industrial Employment (Standing Orders) Act, 1946.
• On 14.10.1991, after hearing from the parties, the Certifying Officer modified several
aspects of the Draft Standing Orders.
• A key provision regarding employee representation in disciplinary proceedings was not
certified, resulting in the continuation of the Model Standing Orders at BPCL's
establishment.
• The Model Standing Orders allow a workman to be represented by an office bearer of the
Trade Union, even if the representative is not employed by the corporation.
• In contrast, BPCL’s certified Draft Standing Orders restrict representation to another
BPCL employee.
• BPCL filed appeal before the Appellate Authority.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626
• The authority approved BPCL’s version of the clause concerning representation in
disciplinary proceedings on 23.11.1993, overturning the Certifying Officer's decision.
• It came into effect on 30 November 1993.

• Writ Petition in HC challenging appellate authority’s decision

• High Court allowed employees to be represented by an office bearer of the Trade Union
during the inquiry, despite this being contrary to the certified Standing Orders and sided
with Certifying Officer’s decision
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626
• BPCL appealed this order in the Supreme Court, which granted an interim stay on the
High Court’s decision, clarifying that only employees of BPCL could represent workmen
during disciplinary proceedings.

• The main issue before the Supreme Court in this appeal is whether an employee can
be represented by a Trade Union member who is not employed by BPCL in
disciplinary proceedings.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626
• BPCL’s Argument: The Model Standing Orders only apply temporarily until the
company’s own Standing Orders are certified. Once certified, these orders replace the
Model Standing Orders. There is no legal requirement for BPCL to adopt the Model
Standing Orders, as long as its own orders are fair and reasonable.

• Respondent's Argument: The Model Standing Orders should guide BPCL’s Standing
Orders, and there should be no deviation from them in principle or policy. The certified
orders deviating from allowing Trade Union representation by external members were
illegal.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626

• Temporary Application of Model Standing Orders: Under Section 12-A, the Model
Standing Orders apply temporarily until the establishment’s own Standing Orders are
certified.
• Procedure for Certifying Standing Orders: Section 5 outlines the process for certifying
Standing Orders, including notifying trade unions and allowing objections before the
Certifying Officer finalizes the orders.
• Binding Nature of Certified Standing Orders: Once certified, Standing Orders bind all
employees and employers, covering both current and future employees.
• Appeal Mechanism: Section 6 of the Act provides for an appeal against the Certifying
Officer’s decisions, with the Appellate Authority empowered to modify or uphold the
orders.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626

• Supreme Court on Right to Representation

• Employees do not have an automatic right to representation by a lawyer or another person

unless specifically allowed by service rules.

• Kalindi vs. Tata Locomotive (1960): The Court ruled that there is no inherent right to be
represented by a union member during disciplinary proceedings. Such proceedings
involve simple questions of fact and are not court proceedings.
• Dunlop Rubber Co. vs. Workmen (1965): Confirmed there is no right to representation
unless explicitly provided in service rules.
• Crescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi (1993): The Court
emphasized that while representation may be desirable, it is not a principle of natural
justice, and the right can be restricted by law or standing orders.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1
SCC 626

• Restriction on Representation: The right to be represented by a lawyer or non-employee

union member in disciplinary proceedings is not a given. Representation by a co-
employee is permitted, but it’s often limited to fellow employees from the same
establishment.
• Bharat Petroleum Corpn. Ltd. V. Maharashtra General Kamgar Union (1999) 1 SCC
626

• Standing Orders vs. Model Standing Orders

• Conformance to Model Standing Orders: Initially, certifying officers only checked if

standing orders conformed to model standing orders, but after 1956, they also assess
fairness and reasonableness.
• Certified Standing Orders Valid: The Court upheld the certified standing orders, which
required that representatives in disciplinary proceedings must be co-employees from the
same establishment. This was considered reasonable as a co-employee would better
understand the work environment.
• Appellate Authority’s Role: The Appellate Authority was justified in certifying the draft
standing orders since they adhered to fairness and reasonableness standards.

• High Court’s decision quashing the Appellate Authority’s certification of the Draft Standing
Orders was set aside.
• Section 12A Temporary application of model standing orders.—
• for the period commencing on the date on which this Act becomes applicable to an
industrial establishment and ending with the date on which the standing orders as finally
certified under this Act come into operation under Section 7 in that establishment, the
prescribed model standing orders shall be deemed to be adopted in that establishment, and
the provisions of Section 9, sub-section (2) of Section 13 and Section 13-A shall apply to
such model standing orders as they apply to the standing orders so certified.
• Section 12-A.--Where there are two categories of workmen, one in respect of the daily
rated workmen and the other in respect of the monthly rated workmen, if there are
certified standing orders in respect of the daily rated workers only, the prescribed model
standing orders should be deemed to have been adopted for those who are employed on
the monthly basis until such categories have their own certified standing orders,
• Section 13. Penalties and procedure.—
• (1) An employer who fails to submit draft standing orders as required by Section 3 or who
modifies his standing orders otherwise than in accordance with Section 10, shall be
punishable with fine which may extend to five thousand rupees, and in the case of a
continuing offence with a further fine which may extend to two hundred rupees for every
day after the first during which the offence continues.
• (2) An employer who does any act in contravention of the standing orders finally certified
under this Act for his industrial establishment shall be punishable with fine which 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.
• (3) No prosecution for an offence punishable under this section shall be instituted except
with the previous sanction of the appropriate Government.
• (4) No Court inferior to that of 29[a Metropolitan or Judicial Magistrate of the second
class] shall try any offence under this section.
• Section 13-A. 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 [or a trade union or other representative body
of the workmen]31 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.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• The judgment involves several special leave petitions (SLPs) and civil appeals initiated
by different parties, including the Union of India, Public Sector Corporations, Banks,
State Governments, and private parties.
• The core legal issue is whether the Inquiry Officer’s report must be provided to the
delinquent employee to enable them to make representations to the disciplinary authority
before deciding on their guilt and punishment.

• Early regulations, such as the Public Servants (Inquiries) Act, 1850 and civil service rules
under the Government of India Act, 1919, did not explicitly require furnishing the Inquiry
Officer’s report.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• Section 240(3) of the Government of India Act, 1935 introduced the requirement for
providing an employee a reasonable opportunity to defend themselves, including
furnishing Inquiry Officer reports at specific stages.
• This requirement was incorporated into Article 311(2) of the Indian Constitution, which
protects civil servants from dismissal, removal, or reduction in rank without due process.

• The 42nd Amendment in 1976 eliminated the requirement to give employees a

second opportunity to represent against the penalty after the inquiry.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• The judgment referred to Khem Chand v. Union of India (1958), which interpreted
“reasonable opportunity” under Article 311(2) to include:
• (a) The right to know the charges and allegations.
• (b) The right to defend through cross-examination and presenting evidence.
• (c) The right to make representations against the proposed punishment.

• A.N. D'Silva v. Union of India (1962) clarified that the Inquiry Officer’s role is to
appraise the evidence and record findings, while the disciplinary authority is
responsible for deciding the punishment.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• Court’s views in subsequent judgements in the matter:

• The Supreme Court held that the employee should be informed of all charges and findings
before being asked to show cause why punishment should not be imposed. Avtar Singh v.
Inspector General of Police, Punjab (1968)
• Failure to furnish the Inquiry Officer's report denies the delinquent a reasonable
opportunity to defend themselves. Uttar Pradesh Govt. v. Sabir Hussain (1975)
• The 42nd Amendment removed the requirement to hear the delinquent employee on the
proposed penalty. Union of India v. Tulsiram Patel (1985)
• Non-service of the Inquiry Officer's report was considered immaterial due to the 42nd
Amendment. K. C. Asthana v. State of U. P. (1988)
• Reinforced the importance of supplying the Inquiry Officer’s report before the
disciplinary authority’s decision on guilt Union of India v. Mohd. Ramzan Khan (1991):
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• Prior to the 42nd Amendment, employees had a right to receive the IO’s report and make
representations at the second stage of disciplinary proceedings (when a notice to show
cause against proposed penalty was issued).
• At the first stage, employees have the right to represent against findings in the IO’s report
before the disciplinary authority makes its decision on guilt.
• At the second stage, they had the right to plead for no or lesser penalties after the
disciplinary authority had concluded on guilt. The 42nd Amendment only removed the
second stage right.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• IO Report as Essential Material:

• The IO’s findings are critical material for the disciplinary authority.
• Denying the employee a chance to respond to these findings breaches principles of natural
justice.
• Even though the disciplinary authority reaches its own conclusions, the IO’s report can
influence the decision, making it necessary for the employee to be allowed to challenge it.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• Failure of an employee to ask for the report does not mean they waive their right to
receive it.
• The report must be provided to the employee regardless of whether they request it or not.
• The right to receive the report applies to employees of all types of establishments
(government and non-government, public or private).
• This right exists irrespective of whether the rules explicitly state that the report should be
given or are silent on the issue.
• Not supplying this report is considered an unfair procedure, violating Articles 14, 21, and
311(2) of the Constitution.
Managing Director, ECIL V. B. Karunakar AIR 1994 SC 1074

• Doctrine of Prospective Overruling (Golak Nath v. State of Punjab):

• The Supreme Court made the decision in Mohd. Ramzan Khan's case prospective,
applying to orders of punishment made after November 20, 1990.
• The court emphasized the doctrine of prospective overruling, which allows new legal
principles to apply only to future cases while preserving past decisions to prevent
administrative chaos.
• The Supreme Court justified its prospective application on the grounds of administrative
efficiency, public interest, and fairness, stating that reopening old disciplinary
proceedings would create more harm than benefit.
Debotosh Pal Choudhary V. Punjab National Bank, AIR 2002 SC 3276

• An employee of the Punjab National Bank challenged his dismissal through a writ
petition.
• The dismissal was based on an inquiry conducted by an Enquiry Officer, with the
dismissal order issued on October 8, 1988, and the inquiry report dated September 26,
1988.
Debotosh Pal Choudhary V. Punjab National Bank, AIR 2002 SC 3276

• Petitioner's Claims:
• The petitioner argued that the inquiry was flawed due to lack of reasonable opportunity to
inspect documents and present witnesses
• He claimed that he was not given the full 15 days required under Regulation 6(18) of the
Punjab National Bank's employee regulations to file a written brief after evidence was
presented.
• He also contended that he was not provided with a copy of the inquiry report before the
dismissal decision was made.
Debotosh Pal Choudhary V. Punjab National Bank, AIR 2002 SC 3276

• Respondents' Defense:
• The respondents asserted that the petitioner had ample opportunity to inspect documents
and that his request to present the witnesses was made too late and deemed irrelevant.
• They argued that the non-provision of the inquiry report was not significant in this case
because the dismissal occurred before a Ramzan Khan case.
Debotosh Pal Choudhary V. Punjab National Bank, AIR 2002 SC 3276

• The learned Single Judge initially sided with the petitioner, acknowledging that
procedural flaws existed.
• However, upon appeal, the Division Bench reversed this decision, affirming the validity
of the dismissal.

• Regulation 6(5) outlines requirements for the disciplinary authority to forward specific
documents to the Inquiring Authority.
• The court found that the petitioner had been provided the necessary documents and had a
fair chance to present his case.
• The inquiry allowed the petitioner to inspect documents and submit a list of evidence,
countering his claims of inadequate opportunity.
Debotosh Pal Choudhary V. Punjab National Bank, AIR 2002 SC 3276

• Despite the procedural oversight of not providing a copy of the inquiry report before the
dismissal, this was not deemed sufficient to overturn the dismissal based on the prevailing
legal standards at that time.
• The Division Bench's decision to dismiss the writ petition was upheld, leading to the
dismissal of the special leave petition filed by the petitioner.
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