Judgment:
S.S. Nijjar, J.
1. The Petitioner Union in this petition under Article 226 seeks declarations to the effect that Model Standing Order (hereinafter referred to as 'MSO') Nos. (1)(a) and (b) and 26 are ultra vires Section 2(a) of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as 'the Aet') Nos. 25 (1)(a), (b), (c) and 26 are also ultra vires Article 14 of the Constitution of India. It is further prayed that various orders of punishment passed by Respondent No. 2 deserve to be quashed being without jurisdiction. Specimen orders of punishment which are consequently prayed to be quashed are attached as Exhibits A, B, C and D to the writ is petition.
2. The petitioner claims to represent majority of the workers employed in the second Respondent Company. Petitioner states that the writ petition, considering its nature, has been filed in the interest of the entire working class as such. It is claimed by the Petitioner that the employer, needlessly imposes punishment of warning, censure and suspension on the employees in order to spoil their record. It is stated that the record of 98% of the employees has been spoiled by the issuance of these punishments. These punishments are imposed unilaterally without hearing the concerned employees and without trying to establish the charges. The second Respondent claims to exercise this power under MSO 25. As instances of this arbitrary action, specimen orders of punishment have been annexed to the writ petition. They are Exhibits A, B, C and D. The Petitioner claims that these orders are ex facie and per se illegal and improper being opposed to the principles of naturaljustice.
3. This apart, the petitioner has pleaded that MSO 25(1)(a) and (b) are ultra vires the Section 2(a) read with Item No. 9 of the Schedule. Matters to be provided in Standing Orders under the Act are enumerated in the Schedule. The Appropriate Government has the power to frame MSO with regard to punishment under Item 9 which is reproduced in the petition as under :
'Item 9 : suspension or dismissal for mis conduct, and acts or omissions which constitute misconduct.'
The petitioner further states that there is no other Item in the said Schedule which prescribes for matters relating to other misconduct or punishment, such as warning, censure or fine. These three modes of punishments are not within the compass of the Schedule to the Act and, therefore, the prescription of this punishment under MSO in Item 25(1)(a) and (b) is ultra vires the Section 2(a) read with the Schedule C of the Act. It is further pleaded that the MSO 25(1)(a), (b) and (c) are ultra vires Article 14 of the Constitution of India. The individual orders Exhs. A,B, C and D deserve to be quashed having been passed without authority of law and in breach of Rules of natural justice.
4. Before dealing with the submissions made on behalf of the parties it would be useful to get a bird's eye view of the relevant provisions of the Act. A perusal of various provisions of the Act reveals that the Act is a beneficent piece of legislation. The Act has been enacted to bring about almost uniform conditions of employment of workmen employed under various establishments. It applies to every establishment wherein 100 or more workmen are employed on any day of the preceding 12 months. However under the proviso to Section 1(3) of the Act, the appropriate Government may, after giving not less than two months' notice of its intention so to do, by notification in the official gazette, apply the provisions of this Act to any industrial establishment as may be specified in the notification. In exercise of the powers conferred by the aforesaid proviso, Respondent No. 1, by notification dated August 15, 1982 has applied all the provisions of the said Act to any industrial establishment wherein fifty or more workmen are employed on any day of the preceding 12 months. Section 2(a) makes the Standing Orders applicable to every establishment from such date as the State Government may by notification in the Official Gazette appoint in this, behalf. Section 15(1) empowers the Appropriate Government to make Rules to carry out the purposes of this Act. Section 15(2) empowers the appropriate Government to set out Model Standing Orders for the purposes of this Act. 21 Ale Schedule provides for the matters to be provided in Model Standing Orders to be made under Section 15(2)(b) by virtue of the power given under Section 2(a) of the Act. Item provides for making Model Standing Orders in relation to 'suspension or dismissal for misconduct, and acts or omissions which constitute misconduct'. In pursuance of these provisions MSO for workmen doing manual or technical work have been made and are contained in the Schedule. They apply to all workmen employed in the establishment to do manual or technical work. MSO 24 defines what constitutes misconduct. MSO 25 gives punishments which may be imposed for different miscon, ducts. It also prescribes the procedure to be followed before inflicting the punishment. MSO 26 deals with the kind of misconduct which may lead to a penalty of warning, censure or fine.
5. We have heard Mr. Kochar, learned Counsel for the Petitioner and Mr. Sawant, learned Advocate General for the Respondents. Counsel for the petitioner Mr. Kochar submitted that in view of Item 9 reproduced above the Respondents have no power to make MSO to impose the punishment of warning and censure. Item 9 only enables them to make MSO for suspension and dismissal. Thus MSO 25(1)(a), (b), (c) and MSO 26 are ultra vires Section 2(a) and Item 9 of the Schedule to the Act. On the other hand, Mr. Sawant, learned Advocate General submitted that Item 9 enables the Government to enact Model Standing Orders with regard to all kinds of misconduct, which could lead to major or minor punishment. We are of the opinion that Model Standing Orders 25(1)(a) and (b) and 26 are within the competence of the appropriate Government to frame MSO. Section 15 empowers the appropriate Government to make Rules to carry out the purposes of this Act. Section 15(2)(b) in particular empowers the appropriate Government to set out MSO for the purposes of this Act. It cannot be visualised that while the appropriate Government would have the power to enact MSO for suspension,an4 dismissal that it would not have the power to provide for the lesser misconduct, for which the punishment prescribed is only minor in the form of warning or censure. Reading to Item No. 9 of the Schedule it leaves no manner of doubt that it empowers the appropriate Government to frame MSO for dealing with misconduct which may lead to suspension or dismissal and other lesser misconducts. If that were not so, then Item No. 9 would have read :
'suspension or dismissal for misconduct'
and not as
'suspension and dismissal for misconduct and acts or omissions which constitute misconduct.'
The latter part of the Item has been enacted only to enable the appropriate Government to frame MSO for various minor misconducts. If Item 9 was to be construed in the manner suggested by Mr. Kochar, Counsel for the petitioner, it would leave a gap, wherein the appropriate Government would have no power to frame MSO for minor misconduct. That would not be in the interest of anyone either the employer or the employees. The very purpose uniformity in would be distention for enacting Item No. 9. We, therefore, hold that MSO 25 and 26 are intra vines Section 2(a) of the Industrial Employment (Standing Orders) Act, 1946.
6. Learned Counsel for the Petitioner Mr. Kochar next contended that MSO 25 is ultra vires Article 14 as it provides no guidelines for imposing the punishment of warning and censure. Moreover the said MSO enables the employer to impose the punishment of warning, censure, without affording any opportunity of hearing or without holding a regular enquiry. He argues that the very same MSO provides for complying with the Rules of natural justice when punishment of fine or dismissal without notice is to be inflicted and yet no safeguard is provided if a punishment of warning or censure is to be imposed. At the first blush the argument seems plausible. However, on closer scrutiny, we find that under Standing Order 26 it is provided that a workman may be warned or censured for any of the misconducts enumerated therein. These are all misconducts which do not cause any civil consequences. Moreover a person cannot be warned or censured unless he is informed as to why he has been warned or censured. On the other hand a fine or dismissal would cause civil consequences. Thus the MSO provides for observance of Rules of natural justice. Rules of natural justice cannot be put into a straitjacket. They have to be moulded to the needs of the situation. In the case of a warning or censure, an informal and oral explanation may be enough. In the case of dismissal full observance of Rules of natural justice would be a prerequisite. Thus we are of the opinion that MSO 25 and 26 do not infringe Article 14 of the Constitution.
7. Mr. Koehar, Counsel for the petitioner further submits that after deliberately spoiling the record of the employees they are dismissed.
This the management is able to do only because of Model Standing Order 25(6) which provides :
'(6) In awarding punishment under this Standing Order the Manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist'.
To our mind this provision provides adequate guidelines to the employer when exercising his discretion. It provides that he should take into account both extenuating or aggravating circumstances of the case. The Manager has to apply his mind to the gravity of the offence and the previous record. Thus it cannot be said that this Model Standing Order gives uncanalised or unbridled powers to the Manager to impose any punishment. In any particular case when this power is misused it can always be challenged in appropriate proceedings. This in itself is not sufficient to render the Model Standing Order ultra vires Article 14.
8. The petitioner has also challenged various orders of punishment passed against the members of its Union. We refrain from examining the legality or otherwise of these individual orders. None of these persons have joined the petitioner as a co-petitioner. Thus no relief can be granted to individuals who are not parties to the writ petition.
9. For the reasons stated above the writ petition is dismissed. Rule is discharged. There will be no order as to costs.