THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS)

ACT, 1946 & CHAPTER IV OF THE IRC 2020

IESO AND IRC

1
INTRODUCTION
 Before 1946, the conditions of employment were chaotic. The workmen were hired on an individual basis, and the
terms of employment were mostly oral, and at that were too vague (Manner of intimating to workmen periods and
hours of work, holidays, pay-days and wage rate). The bargaining power of labour was weak due to age-old
poverty, mass illiteracy, and ignorance.
 The Industrial Employment (Standing Orders) Act, 1946, was adopted as a “very simple measure” to remedy the
situation by requiring employers in industrial establishments formally to define conditions of employment under
them.
 The Industrial Employment (Standing Order) Act, 1946; the Industrial Disputes Act, 1947, and The Trade Union
Act, 1926 was consolidated by the Industrial Relations Code, 2020. The Code was enacted in 2020 and stated
conditions for employment in industrial establishments.
 Object of the Act: That the object of the Act is to have uniform Standing Orders providing for the matters
enumerated in the Schedule to the Act, that it was not intended that there should be different conditions of service
for those who are employed before and those employed after the Standing Orders came into force and finally, once
the Standing Orders come into the force, they bind all those presently in the employment of the concerned2
establishment as well as those who are appointed thereafter. (Agra Electric Supply Co. Ltd. v. Aladdin, (1969) 2
SCC 598; U.P. Electric Supply Co. Ltd. v. Their Workman, (1972) 2 SEC 54)
APPLICATION OF THE STANDING ORDER ACT, 1946

 This Act applies to every industrial establishment wherein one hundred or more workmen are employed or were
employed on any day of the preceding twelve months.
 Section 28 of the IRC requires that the provisions of Standing Orders shall apply to every industrial establishment
wherein three hundred or more than three hundred workers, are employed, or were employed on any day of the
preceding twelve months.
 Section 2(e) of the Act provides entities covered under industrial establishment. Following are the entities listed as
Industrial Establishment:
i. An industrial establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act, 1936, or
ii. A factory as defined in clause (m) of Section 2 of the Factories Act, 1948, or
iii. A railway as defined in clause (4) of Section 2 of the Indian Railway Act, 1890, or
iv. The establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial
establishment, employs workmen. 3
NON- APPLICATION OF THE STANDING ORDERS ACT, 1946
 Section 1(4) of the Standing Order Act provides industries excluded from the ambit of the Act:

i. any industry to which the provisions of Chapter VII of the Bombay Industrial Relations Act, 1946, apply; or
ii. any industrial establishment to which the provisions of the Madhya Pradesh Industrial Employment (Standing Orders)
Act, 1961 apply
 The provisions of this Act shall apply to all industrial establishments under the control of the Central Government .
 Further, as provided under Section 13B of the Act, the Standing Order Act [Section 28(2) IRC] does not apply to the
industrial establishment where the workers employed are the persons to whom the rules below apply. The rules are as
follows:
i. The Fundamental and supplementary rules
ii. Civil services (temporary services) rules
iii. Civil services (classification, control and appeal) rules
iv. Indian railway establishment Code
v. Revised leave rules 4

vi. Civilians in defence service (classification, control and appeal) rules

STANDING ORDER

 The Industrial Employment (Standing Orders) Act 1946 introduced the standing order to review the law governing
the relationship between the employee and employer.
 Section 2(g) of the Industrial Employment (Standing Order) Act, 1946, defines the Standing Order as rules
relating to matters set out in the Schedule. (Section 2(zj), IRC)
 Standing orders are binding and must be followed by the employer and employee.
 Though the legal nature of Standing Orders is mostly considered to be statutory in nature and the same has been
reinforced in several judgements by the Apex Court, there have been several arguments debating the claim.
 The nature of Standing Orders has been considered as contractual at times, and an ‘award’ at others.
 Meanwhile, the argument that the nature of Standing Order is ambiguous and inconclusive seems to stand
corrected as it fails to be put in one category without solid arguments against the claim of its nature as statutory,
contractual or an award.

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MATTERS PROVIDED IN STANDING ORDER ACT, 1946: THE
SCHEDULE
1. Classification of workmen, e.g., whether permanent, temporary, apprentices, probationers, or badlis.
2. Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.
3. Shift working.
4. Attendance and late coming.
5. Conditions of, procedure in applying for, and the authority which may grant leave and holidays.
6. Requirement to enter premises by certain gates, a liability to search.
7. Closing and reporting of sections of the industrial establishment, temporary stoppages of work and the rights and
liabilities of the employer and workmen arising there from.
8. Termination of employment, and the notice thereof to be given by employer and workmen.
9. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
10. Means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or
servants. 6

11. Any other matter which may be prescribed.

STATUTORY NATURE OF STANDING ORDERS
 The very first argument of Standing Orders as being statutory in nature comes from the case The Bagalkot
Cement Co. Ltd. Vs. R.K. Pathan & Ors., 1963 AIR 439 wherein the Supreme Court stated that:
“The object of the Act as we have already seen, was to require the employers to make the conditions of
employment precise and definite and the act ultimately intended to prescribe these conditions in the from of
standing orders so that what used to be governed by a contract hereto before would now be governed by
the statutory standing orders…”.
 This decision of the Supreme Court was relied upon in various other judgements to conclude that Standing Orders,
once certified, are statutory in nature. This was reinforced by the High Court of Gujarat in the case of Tata
Chemicals Ltd. And Ors. vs Kailash C. Adhvaryu, AIR 1964 Guj 265 wherein the judge distinguished between a
statutory obligation and a contractual obligation and therefore came to the conclusion that certification of standing
orders under the IESO Act creates statutory rights and obligations.

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ARGUMENTS AGAINST THE STATUTORY NATURE OF STANDING
ORDERS:
 If we are to assume that the standing orders are statutory in nature, then if they are in contradiction to the
fundamental rights given to citizens in our constitution; the constitutional validity of these statutory rights and
obligations against our fundamental rights can be argued by parties under Article 32 and Article 226 of the
constitution.
 Section 10(1) of the IESO Act clearly states that even after the certification of the standing orders, they are liable
to change on agreement between the employers and the workmen. This is in complete contradiction to the
statutory nature of standing orders as no statute can be modified on agreement between two parties. Provisions
with true statutory effects are not susceptible to amendments based on agreements between two parties.
 Lastly, the Act imposes restrictions on the bargaining power of the employers curtailing the freedom of contract so
that employers must present draft standing orders which are compatible with the statute. In no way does the Act
delegate any legislative powers to any authority but rather, it imposes an obligation on an individual employer to
make rules keeping in mind the model standing orders given in the schedule. Furthermore, the Certifying officer
has only limited judicial power. Thus, certified standing orders are not delegated legislation and hence, are not
statutory in nature. 8
STANDING ORDERS AS AN ‘AWARD’
 Section 4 of the IESO Act states that the decision maker or the Certifying Officer, after hearing both the parties,
adjudicates upon the “fairness or reasonableness” of standing orders laying down the conditions of the
employment. This, in turn, makes standing orders as a kind of “award”. But this cannot be the case, as the
Industrial Disputes Act, 1947 does not consider the Certifying Officers as the decision makers in matters of
industrial disputes and thus the standing orders cannot be an award.
 Also, the Certifying Officer does not, in any way or form, settle an industrial dispute; he merely modifies or
certifies the draft standing orders after hearing both the parties.
 Section 13(2) of IESO Act makes the employer liable for any contravention of the standing orders, thus
contradicting the principle that an award is as binding and applicable to one party as it is to the other.

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STANDING ORDERS AS SPECIAL KINDS OF CONTRACTS:
 An argument in favor of the contractual nature of standing order comes from the case of Buckingham and
Carnatic Co. Vs. Venkatayga, 1964 AIR 1272 wherein Justice Gajendragadkar stated that:
“The certified Standing Orders represent the relevant terms and conditions of service in a statutory form, and they
are binding on the parties at least as much, if not more, as private contracts embodying similar terms and
conditions of service.”
 Another statement in favor of the contractual nature of standing order comes from Mettur Industries Ltd Vs. A.R.
Varma And Ors, AIR 1959 Mad 479 the High Court of Madras stated that:
“Reading the Act as a whole it is clear that the standing orders form part of the contract between the management
and every one of its employees.”
 Lastly, in an amendment of the Industrial Disputes Act, 1964, the following was added to Section 33:

“[(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no
such standing orders, in accordance with the terms of the contract, whether express or implied, between him and
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the workman...]
SECTION 3: SUBMISSION OF DRAFT STANDING ORDERS

 Section 3 of the Act requires the employer to submit draft standing orders within six months from the date on
which this Act becomes applicable to an industrial establishment. Section 3(2) provides that in the draft thus
submitted provision shall be made 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.
 As an effect of this provision the certifying offer has to be satisfied that the draft standing orders deal with every
matter set out in the Schedule and are otherwise in conformity with the provisions of the Act. It is quite true that
this requirement does not mean that the draft standing order must be in identical words, but it does mean that in
substance it must conform to the model prescribed by the appropriate government. (Associated Cement Co. Ltd. v.
P. D. Vyas, AIR 1960 SC 665)
 A similar view has been endorsed by the Supreme Court in Rohtak and Hissar Districts Electric Supply Co. Ltd.
V. State of U.P., AIR 1966 SC 1471.

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SECTION 4: CONDITIONS FOR CERTIFICATION OF STANDING
ORDERS & SECTION 30(7), IRC
Standing orders shall be certifiable under this Act if:
(a) 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.

 The proviso to Section 4 of the Act, as amended by Act 56 of 1956, necessitates the Certifying Officer or appellate
authority to adjudicate upon the fairness or reasonableness of the contents of such Draft Standing Order in order to
proceed with its certification.
 Once the standing orders are certified, they constitute the conditions of the service binding upon the management
and the employees serving already and in employment or who may be employed after certification.
 This implies that different set of standing orders cannot exist in respect of distinct sections of workmen or the
employer(s), for that would frustrate the intent of the legislature by rendering the conditions of employment as12
indefinite & diversified, just as existed prior to the enactment of the said Act.
STANDING ORDER > EMPLOYMENT AGREEMENT

 In Western India Match Co. Ltd. v. Workmen, AIR 1973 SC 2650, the question that came before the SC for
consideration was whether an agreement made between the employer and workman, which is inconsistent with the
Standing Order, will prevail over the Standing Order.
 According to the standing order, a workman shall not be kept on probation for more than two months. If he has
worked during these two months to the satisfaction of the company, he becomes permanent. The employment
agreement mentions probation period of six months.
 The Court is of the opinion that the employment agreement is inconsistent with the Standing Order to the extent of
the additional four months’ probation. The terms of employment specified in the Standing Order would prevail
over the corresponding terms in the contract of service in existence on the enforcement of the standing order.

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ROHTAK AND HISSAR DISTRICT SUPPLY CO. LTD. V. STATE OF
U.P. AIR 1966 SC 1471
 Background: In accordance with the provisions of the Industrial Employment (Standing Orders) Act, 1946, the
appellant 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. In appeal by special
leave.
 Held: The contention that the procedure adopted by the certifying authorities in dealing with the question of the
fairness or reasonableness 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 in14
exercise of the authority conferred on it by s.15.
CONTINUED...

 Under S. 3(2) of the Act the employers have to frame draft standing Orders and they must normally cover
the items given 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. 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.

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SECTION 5: CERTIFICATION OF STANDING ORDERS

1) On receipt of the draft under Section 3, the Certifying Officer shall forward a copy thereof to the trade union, if
any, of the workmen, or where there is no such trade union, if any, of the workmen or where there is no trade
union, to the workmen in such manner as may be prescribed, together with a notice in the prescribed form
requiring objections, if any, which the workmen may desire to make to the draft standing orders to be submitted
to him within fifteen days from the receipt of the notice.
2) After giving the employer and the trade union or such other representatives of the workmen as may be prescribed
an opportunity of being heard, the Certifying Officer shall decide whether or not any modification of 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.
3) The Certifying Officer shall thereupon certify the draft standing orders, after making any modifications there in
which his order under sub-section (2) may require, and shall within seven days thereafter send copies of the
certified standing orders authenticated in the prescribed manner and of his order under sub-section (2) to the
employer and to the trade union or other prescribed representatives of the workmen.
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SECTION 6: APPEALS

 (1) [Any employer, workmen, trade union or other prescribed representatives of the workmen] aggrieved by the
order of the Certifying Officer under sub-section (2) of Section 5 may, within [thirty days] from the date on
which copies are sent under sub-section (3) of that section, appeal to the appellate authority, and 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
thereof or additions there to as it thinks necessary to render the standing orders certifiable under this Act.
 (2) The appellate authority shall, within seven days of its order under sub-section (1) send copies thereof to the
Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen,
accompanied, unless it has confirmed without amendment the standing orders as certified by the Certifying
Officer, by copies of the standing orders a certified by it and authenticated in the prescribed manner.

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SECTION 10: DURATION AND MODIFICATION OF STANDING
ORDERS & SECTION 35, IRC

 (1) Standing orders finally certified under this Act shall not, except on agreement between the employer and the
workmen [or a trade union or other representative body 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 in to operation.
 2) Subject to the provisions of sub-section (1), an employer or workman [ or a trade union or other representative
body of the workmen] may apply to the Certifying Officer to have the standing orders modified, and such
application shall be accompanied by five copies of the modifications proposed to be made, and where such
modifications are proposed to be made by agreement between the employer and the workmen [or a trade union or
other representative body of the workmen], a certified copy of that agreement shall be filed along with the
application.]

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SECTION 13-A: INTERPRETATION, ETC., OF STANDING ORDERS &
SECTION 37, IRC

 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.

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SHAHDARA–SAHARANPUR LIGHT RAILWAY COMPANY LTD. V. SHAHDARA-
SAHARANPUR RAILWAY WORKERS’ UNION (1969) I LLJ 734

 Background: Six months after the, appellant's Standing Orders as modified had come into operation, the
respondent applied for further modification of the Standing Orders, under s. 10(2) of the Industrial Employment
(Standing Orders) Act, 1946, 'as amended in 1956. The certifying officer allowed some of the modifications and
on appeal by the respondent, the Appellate Authority allowed some more modifications.
 Arguments against modifications:

i. The authorities under the Act can certify modifications of existing Standing Orders under s. 10(2) only when a
change of circumstances is established, because, s. 6 of the Act confers finality on certified Standing Orders or
modifications thereof;
ii. On principles analogous to res Judicata, the authorities had no jurisdiction to grant the modifications in the
present case; and
iii. the modifications were not reasonable or fair.
 Held: A change of circumstances is not a condition precedent to the maintainability of an application for
modification under s. 10(2). 20
SECTION 4 AMENDMENT CONTINUED...

 Held: Under the Act before its amendment in 1956, a workman could not object that the Standing Orders were not
reasonable or fair. His only remedy was to raise an industrial dispute, but that remedy was unsatisfactory, since the
dispute had to be sponsored by a union or at least a substantial number of workmen and even then, the process was
a protracted one. Parliament knew that the workmen had the right to raise an industrial dispute and also the defects
in that remedy and so amended ss. 4 and 10 of the Act by Act 36 of 1956. The amendment conferred on individual
workman the right to object to draft Standing Orders submitted by an employer on the ground that they are either
not fair or not reasonable, and also gave the right to apply for their modification. Under s. 6, a person aggrieved by
the order of the certifying officer certifying or modifying Standing Orders, may appeal to the Appellate Authority
whose decision shall be final. But the finality only means that there is no further appeal or revision against the
order and that the order cannot be challenged in 'a civil court. It can, however. be modified under s. 10(2).
 In an application for modification the issue before the authority would be not as to reasonableness or fairness of
the ‘existing’ Standing Orders. but whether the modification ‘applied’ for is fair and reasonable. Such an
application is an independent application and merely because it could be made on the ground that the existing
Standing Orders are discovered to be unsatisfactory even without any change in circumstances, it would not21
amount to a review of an earlier order.
JURISDICTION OF CIVIL COURTS TO TO ENTERTAIN SUITS WRT.
PROVISIONS OF IDA, 1947

 Rajasthan State Road Transport Corporation and Another v. Bal Mukund Bairwa (2009) 4 SCC 299: The
question as to whether the civil court’s jurisdiction is barred or not must be determined having regard to the fact of
each case.
i. 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 constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no
right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court
will have jurisdiction.

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PRINCIPLES OF NATURAL JUSTICE TO BE FOLLOWED IN
DOMESTIC INQUIRY
 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. One of them was conducted by officers, who had themselves witnessed the alleged misconduct. 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. It was held by the SC that:
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
23
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.
TATA OIL MILLS CO. LTD. V. WORKMEN, 1965: DISORDERLY
BEHAVIOR OUTSIDE THE FACTORY PREMISES
 Background: On a report that R and M, both employees of the appellant waylaid A, assaulted another employee
outside the factory, 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. On reference of this dispute, the Industrial Tribunal held that the assault could be treated as a private
matter between R and A with which the appellant was not concerned and as a result Standing Order 22(viii) could not
be invoked against R, and it ordered the reinstatement of R. On appeal by special leave.
 Standing Order 22 (viii) of the Certified standing orders of the Tata Oil Mills Co. Ltd., provided 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.
 Held: that It would be unreasonable to, include within Standing Order 22(viii) any riotous behaviour without the
factory which was the result of purely private and individual dispute and in course of which tempers of both the
contestants become hot. 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.
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 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
CONTINUED...
 Since the domestic enquiry had been fairly conducted, and the findings recorded therein were based on Evidence
which was believed, there was no justification for the Industrial Tribunal to consider the same facts for itself.
Findings properly recorded at such enquiries are binding on parties, unless, of course, it is shown that such
findings are perverse or are not based on any evidence.
 The Industrial Tribunal was in error when it characterised the result of the domestic enquiry as malafide partly
because the enquiry was not stayed pending criminal proceedings against R. 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. It would be particularly
appropriate to adopt such a course when the charge is of a grave character because it would be unfair to compel
the workman to disclose the, defence which he may take before the criminal court. But to say that domestic
enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the
domestic enquiry inspite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated
and the conclusion arrived at in such, an enquiry is either bad in law or malafide.
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KUSHESHWAR DUBEY V. BHARAT COKING COAL LTD., 1988:
CRIMINAL PROCEEDING V. DISCIPLINARY PROCEEDINGS
 Background: The appellant, was subjected to disciplinary proceedings as also a criminal prosecution
simultaneously on the allegation that he physically assaulted a supervising officer. He filed a civil action in the
trial court asking for injunction against the disciplinary action pending criminal trial. The trial court stayed further
proceedings in the disciplinary action till disposal of the criminal case. In appeal, the appellate court affirmed the
aforesaid order. However, the High Court allowed the Revision Application of the Respondent and set aside the
impugned order on the ground that there is no bar for an employer to proceed with the departmental proceeding
with regard to the same allegation for which a criminal case is pending.
 Held: The order of the High Court is vacated and that of the trial court as affirmed in appeal is restored. The
criminal action and the disciplinary proceedings were grounded upon the same set of facts. The disciplinary
proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of
injunction which had been affirmed in appeal.
 While there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it
would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of
cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the court.
 Whether, in the facts and circumstances of a particular case, there should or should not be such simultaneity of the26
proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a
particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial.
DEPOT MANAGER, ANDHRA PRADESH STATE ROAD TRANSPORT
CORPORATION V. MOHD. YOUSUF MIYA, (1996)
 The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal
prosecution is launched for an offence in violation of a duty the offender owes to the society or for breach of
which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in
violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service
and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted
and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible
rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the
delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There
would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the
charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally
implies infringement of public, as distinguished from mere private rights punishable under criminal law.
 The evidence required in the departmental enquiry is not regulated by Evidence Act. 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
27
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 proceedings.
THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY V.
DILIPKUMAR RAGHAVENDRANATH NADKARNI, (1983)
 Principles of Natural Justice, Fair Enquiry and Legal Presentation in a domestic enquiry: Whether, where in
a domestic enquiry the employer appoints a legally trained person as presenting-cum-prosecuting officer the
enquiry would be vitiated for violation of principles of natural justice if the employer rejected the delinquent's
request for permission to defend him by a legal practitioner.
 Background: In a chargesheet issued against the delinquent employee (respondent) for the misconduct alleged
against him the management appointed its legal officer and his assistant as presenting officers. At the same time it
rejected the employee's request to engage a legal practitioner for his defence. 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 neither the enquiry officer nor the disciplinary authority reviewed the earlier decision rejecting the
delinquent's request to be represented by a legal practitioner. At the end of the enquiry the respondent was
dismissed from service.
 Held: Since the delinquent employee had not been afforded a reasonable opportunity to defend himself the
enquiry vitiated for violation of principles of natural justice. 28
PRINCIPLES LAID DOWN:

1. 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.
2. Where rules governing a domestic enquiry do not place an embargo on the right of the delinquent to be
represented by a legal practitioner the matter would be in the discretion of the enquiry officer whether,
considering the nature of the adjudication and the enquiry, the delinquent should be afforded a reasonable
opportunity to be represented by a legal practitioner.
3. When an enquiry officer finds that the employer had appointed a legally trained person as presenting officer, he
must, before the commencement of the enquiry, enquire from the delinquent whether he would like to take the
assistance of a legal practitioner.

29
REASONING:
 The time honoured and traditional approach in regard to a domestic enquiry in industrial disputes is that it is a
managerial function which would be best left to the management without the intervention of persons belonging to
the legal profession. This approach was based on the ground that a domestic enquiry should not be unduly
inhibited by strict rules of evidence and procedural laws and that in the informal atmosphere in which the enquiry
is conducted the delinquent would be able to defend himself. Whatever justification there might have been in the
past for holding this view, the position today is altogether different.
 Industrial establishments employ on their rolls an impressive array of labour officers and legal advisors in the garb
of employees. These officers are appointed as presenting and prosecuting officers for conducting the
management's case in a domestic enquiry. The enquiry officer, more often than not, is a man of the establishment
donning the robes of a judge. The enquiry is held in the establishment's office or part of it. It does not bear any
comparison to an adjudication by an impartial arbitrator, or a Court presided over by an unbiased judge. Witnesses
are generally employees of the management which orders the enquiry. In short the scales are weighted in favour of
the management and against the workman.
 The aphorism that “justice must not only be done but must be seen to be done” is not a euphemism applicable to
courts alone; it should apply with equal vigour to all those responsible for fair play in action. A quasi-judicial30
tribunal cannot view the situation with equanimity where there is inequality of representation.
CRESCENT DYES & CHEMICALS LTD. V. RAM NARESH TRIPATHI,
(1992)
 Principles of natural justice and the right to legal representation: If a Domestic Tribunal refuses permission to
a delinquent appearing before it to be represented by an agent would that amount to infringement of the rule of
natural justice?
 Held: A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger
entitlement of a fair hearing based on the rule of natural justice. He may, therefore, feel that refusal to be
represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily it is considered
desirable not to restrict this right of representation by counsel or an agent of one's choice but it is a different thing
to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the
enquiry.
 Representation through counsel can be restricted by law as for example, Section , 36 of the Industrial Disputes
Act, 1947, and so also by certified Standing Orders. In the present case the standing orders permitted an employee
to be represented by a clerk or workman working in the same department as the delinquent. So also the right to
representation can be regulated or restricted by statute.
31
CONTINUED...
 It was further held at para 16 that:

“[...the right to be represented through counsel or agent can be restricted, controlled or regulated by statute,
rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless
the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's
right of hearing is concerned, cannot and docs not extend to a right to be represented through counsel or agent. In
the instant case the delinquent's right to representation was regulated by the Standing Orders which permitted a
clerk or a workman working with him in the same department to represent him and this right stood expanded on
Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the Union, albeit
on being authorised by the State Government. The object and purpose of such provisions is to ensure that the
domestic enquiry is completed with dispatch and is not prolonged endlessly. Secondly, when the person defending
the delinquent is from the department or establishment in which the delinquent is working he would be well
conversant with the working of that department and the relevant rules and would, therefore, be able to render
satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also
inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts
with the principles of natural justice.]” 32
BHARAT PETROLEUM CORPN. LTD. V. MAHARASHTRA GENERAL
KAMGAR UNION, (1999): RIGHT TO REPRESENTATION

 Para 14(4)(ba) of the Model Standing Orders, as framed by the Central Government under the Act for Industrial
Establishments, not being Industrial Establishments in coalmines, provides as under:-
"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.”
 Clause 29(4) of the Draft Standing Orders, as certified by the Appellate Authority by its judgment dated
23.11.1993, provides as under:-
"29.4 (para-3): 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.”
 The vital difference between the Model Standing Orders, as set out above, and the Draft Standing Orders, as
certified by the Appellate Authority, 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, as certified by the Appellate Authority, which restrict his right of33
representation by a fellow workman of his choice from amongst the employees of the appellant-Corporation.
HELD:
 In 1956, radical changes were introduced in the Act by the Parliament as a result of which not only the scope of
the Act was widened, but jurisdiction was also conferred upon the Certifying Officer as also the Appellate
Authority to adjudicate upon and decide the question relating to fairness or reasonableness of any provision of the
Standing Orders. In the instant case, the Standing Orders as finally certified cannot be said either to be not in
consonance with the Model Standing Orders or unreasonable or unfair.
 Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary
proceedings through another employee who may not be the employee of the parent establishment to which the
delinquent belongs and may be an employee elsewhere, though he may be a member of the Trade Union, but this
rule of representation has not been disturbed by the Certified Standing Orders, inasmuch as it still provides that
the delinquent employee can be represented in the disciplinary proceedings through an employee. The only
embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent
in selecting his representative is affected only to the extent that the representative has to be a co-employee of the
same establishment in which the delinquent is employed. There appears to be some logic behind this as 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
34
domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus
retained and the right of representation in the disciplinary proceedings through another employee is not altered,
MANAGING DIRECTOR, ECIL V. B. KARUNAKAR, (1994)

 Issue: 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, if any, to be awarded to him.
 Held: The Constitution Bench of the Supreme Court held that when the Inquiry Officer is not the disciplinary
authority, the delinquent employee has the right to receive a copy of the Inquiry Officer’s report before the
disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard
to the charges levelled against him.
 When the employee is dismissed or removed from service and the inquiry is set aside because the report is not
furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely, while in other
cases it may have made no difference to the ultimate punishment awarded to him.

35
CONTINUED...
 Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the
disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the
aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee
an opportunity to show how his or her case was prejudiced because of the non-supply of the report.
 If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would
have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not
interfere with the order of punishment.
 The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was
not furnished. The courts should avoid resorting to short-cuts. Since it is the Court/Tribunal which will apply their
judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment,
(and not any internal appellate or revisional authority), there would neither be a breach of the principles of natural
justice nor a denial of the reasonable opportunity.
 It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in
the case that it should set aside the order of punishment. 36
DEBOTOSH PAL CHOUDHARY V. PUNJAB NATIONAL BANK, (2002)
 Background: The petitioner before us was employed on the establishment of the first respondent- Bank. He was
dismissed from service by an order made on October 8, 1988 on the basis of an enquiry conducted by an Enquiry
Officer and the report made on September 26, 1988. In challenging by way of a writ petition the order of dismissal
the petitioner contended that the enquiry is vitiated as he did not have any reasonable opportunity to have the
copies of the documents or inspection thereof; that he was not afforded an opportunity to adduce oral evidence by
examining two witnesses- that under Regulation 6(18) of the Punjab National Bank Officer Employees'
(Discipline and Appeal) Regulations, 1977, 15 days time should have been given to him for furnishing a written
brief after completion of the production of evidence, but the Enquiry Officer gave him only two days time; that the
copy of the enquiry report was not given to him before imposing the punishment of dismissal.
 Issue: The learned Single Judge, inter alia, 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.
 Held: The Division Bench of the High Court has rightly allowed the appeal filed by the respondent resulting in37
dismissal of the writ petition filed by the petitioner. This matter, therefore, does not call for any interference and
the special leave petition stands dismissed.
REASONING:

 Regulation 6(5) of the Regulations which requires the disciplinary authority shall, where it is not the inquiring
authority, forward to the Inquiry Authority the following documents:-
1. A copy of the articles of charge and statement of imputations of misconduct or misbehavior;
2. A copy of the written statement of defence, if any, submitted by the officer employee;
3. A list of documents by which and list of witnesses by whom the articles of charge are proposed to be
substantiated;
4. A copy of the statement of the witnesses, if any;
5. Evidence proving the delivery of the articles of charge under sub-regulation (3); and
6. A copy of the order appointing the 'Presenting officer' in terms of subregulation (6).
 Fulfilment of some of the requirements of this Regulation is purely procedural in character. Unless in a given
situation, the aggrieved party can make out a case of prejudice or injustice, mere infraction of this Regulation will38
not vitiate the entire enquiry.
CONTINUED...
 The petitioner had been given documents for inspection as per the list given by the Presenting Officer and that he
had verified all the documents and papers and inspected the documents.
 The Inquiring Authority allowed the petitioner to file a list of documents and the request for inspection or copies
was also allowed. It is thereafter the Enquiry Officer has relied upon the documents produced by the Presenting
Officer and adverted to various documents produced by the petitioner as well. Therefore, the contention of the
petitioner that he did not have reasonable opportunity to inspect the documents is incorrect.
 In the circumstances of the case, the rejection of the request of the petitioner for adducing evidence of Shri S.C.
Tandon and Shri A.K. Dey will not vitiate the enquiry. Further, whatever documents the petitioner sought for had
been furnished to him and he had full opportunity to inspect the same.
 The records disclose that a written brief was, in fact, filed by the petitioner within the time given by the Enquiry
Officer. Having participated fully in the enquiry and on the sitting held on 22.9.1988 having confirmed that he did
not intend to say anything further, it would not be appropriate for the petitioner to contend that he had not been
given any reasonable opportunity to put forth his case.
 It is true that the petitioner was not provided with a copy of the enquiry report by the disciplinary authority before39
imposition of the punishment of dismissal, but that circumstances has no bearing on the dismissal of the petitioner.