Judgment:
ORDER
T.N. Vallinayagam, J.
1. These Writ Petitions are inter-connected, inasmuch as they are concerned with the Standing Orders of the institutions which are common in nature and therefore they are dealt with under a common judgment.
2. W.P. 20302/1991 is filed by the workmen of the Hindustan Aeronautics Limited (hereinafter referred to as HAL in brevity) praying to quash the order dated August 5, 1991 bearing No. IE-5/5/6/85/LS-1 passed by the second respondent appellate authority, namely, the Joint Chief Labour Commissioner, Government of India.
3. W.P. 12533/1992 is by the workmen of Indian Telephone Industries (hereinafter referred to as ITI in brevity), wherein the prayer is to quash the order dated August 6, 1991 bearing No. IE-5/4/861LS-1 passed by the very same second appellate authority, namely, the Joint Chief Labour Commissioner.
4. W.P. 12787/1992 is filed by the Management of HAL seeking to quash the order of the same Joint Chief Labour Commissioner dated August 5, 1991 in No. IE-5/6/86/LS-1.
5. In the I.T. Industries, the word 'wife' in the Standing Order under Clause 23 (B) has been replaced by the word 'spouse' to mean both men and women workers. The other clauses becoming an office bearer of a political party or organisation has been curtailed are permitted with the permission of the authorities and the modification suggested by the appellate authority was more in the form of check and balance for both the workers and the management. This amendment is opposed by both the workmen and the management in HAL Industries and by the workmen in the I.T. Industries with reference to the clause relating to the maintenance of the wife.
6. The complaint of the petitioner in WP 20302/1991 was that they are aggrieved by the order of the Joint Chief Labour Commissioner. They were workmen employed in the HAL who were governed by the then existing Act, namely, the Mysore Labour Act, 1940 and later Industrial Employment (Standing Orders) Act, 1946. The Standing Orders defining disciplinary rules have been enforced at Bangalore since the date of commencement of the factory in the year 1940. The original Standing Orders were registered under the provisions of the then existing Mysore Labour Act, 1940.
7. The original Standing Orders were registered under the provisions of the then existing Mysore Labour Act, 1940. After the enactment of Part B States Laws Act, the Industrial Employment (Standing Orders) Act and Industrial Disputes Act 1947 and such other Central Laws came to be enforced. As such the Standing Orders of the HAL establishments came to be certified under the provisions of the Industrial Employment (Standing Orders) Act, 1946. The said Standing Orders have been amended on 2 or 3 occasions at the instance of the parties. But clauses enumerating misconduct have remained practically the same over the years. It is claimed that suddenly by memo dated May 14, 1985 HAL sought certain amendments to the Standing Orders Clause 25 defining misconduct. In substance, the management wanted political activity or such actions of the workmen to be treated as misconduct. This amendment meant a radical departure in the concept of misconduct. The workmen being citizens are entitled to all civil rights like other citizens. The Standing Order proposed meant a serious invasion into the civic rights of the workmen. The petitioner union therefore filed objections to the proposed amendment. On such objections, the Regional Labour Commissioner, as certifying officer under the Industrial Employment (Standing Orders) Act, 1946 heard the parties and passed an order on June 30, 1986 modifying the proposals of the management. However, aggrieved by such notification the workmen preferred an appeal to the second respondent. The management also preferred an appeal. The appellate authority passed the impugned order on the appeal incorporating certain amendments to the existing Standing Orders as in No. 25 of the Standing Orders of the HAL.
8. In the grounds of writ petition, it is claimed that the proposed amendment to Standing Orders No. 25 (19) and 25(20) to the HAL Standing Orders, is contrary to the provisions of the Trade Unions Act and authority earlier accepted the contention of the workmen that the Trade Unions Act provide for a trade union, undertaking political and civic activity in the interest of its members. When once a member of the trade union is entitled to participate in the political activity or civic activity, he cannot but be entitled to be an office bearer or hold responsible position in the said organisation. Mere holding the post of an officer bearer of a party cannot per se by itself constitute the misconduct so as to invite the disciplinary jurisdiction of the employer. Indulging in political activity inside the factory premises would not be misconduct. The factory premises have been widely construed by the management in view of the Housing Colony etc. Further elections are held to various management sponsored by political committee, work committee, canteen committee etc.; and obviously therefore there cannot be misconduct of such a type. For the past 50 years, there was no necessity to impose such a new type of misconduct and as such the authority should have insisted on the management to justify their proposals. In Industrial Law political activity of the workmen is never recognised as capable of inviting disciplinary jurisdiction of the employer. Political activity, or religious activity is a personal concern of a workman and is alien to the concept of misconduct. This has nothing to do with employer and employee relationship. The amendments were also opposed to the Model Standing Orders prescribed under the Act.
9. The Writ Petition was opposed by the first respondent raising the following contentions:
It is submitted in the statement of objections of the first respondent that the first respondent sought for adding the following clauses of misconduct.
'25(19) Becoming an office bearer of a political party or an organisation which takes part in politics;
25(20) Taking part in or assisting in any manner in any movement agitation or demonstration of a political nature;
25(21) Taking part in an election to any legislature or local authority;
25(22) Canvassing in any election to any legislature or local authority;'
10. The Certifying Officer was pleased to certify the following clauses which reads as follows.
'25(19) Becoming an Office Bearer of a political party or an organisation which takes part in politics;
25(20) Taking part in an election to any legislature or local authority provided that;
(i) the employee qualified to vote in such election may exercise his right to vote, but where he does so, he shall give no indication of the manner in which he proposes to vote or voted;
(ii) An employee shall not be deemed to have contravened the provisions of this order by reason only that he assists to conduct any election or performs a duty imposed on him under any law for the time being in force;
(iii) employer may permit an employee to offer himself as a candidate to election to any Legislature or local authority and the employee so permitted shall not be deemed to have contravened the provisions of this order.'
11. However, two clauses were rejected against which an appeal was preferred by the management. It is further submitted that Indian Telephone Industries and Bharath Electronic Ltd. also submitted draft Standing Orders. It is also pointed out one Mr. Kannan has been elected to the State Legislature and he is a sitting MLA. But his services were terminated on loss of lien. The further contention was that there are several undertakings of the Central Government where similar clauses are found and that the Public Sector Undertakings have such clauses of misconduct which have been approved in the law laid down by the Supreme Court. The first respondent is a public sector undertaking devoted to the needs of the defence of the country. Such defence establishment cannot afford the luxury of politics inside the premises. They pray for dismissal of the writ petition.
12. In W.P. 12533/1992, the petitioners are workmen of the Indian Telephone Industries Ltd. They are also aggrieved by the similar certification of the Standing Orders by the second respondent, namely, Joint Chief Labour Commissioner and the third respondent, namely, the Regional Labour Commissioner in their orders dated June 30, 1986 and August 6, 1991, reiterating the same contentions as made in the other writ petitions. It is alleged that by the memo dated June 21, 1985, ITI sought certain amendments to the Standing orders under Clause 23 by way of adding 23B and 23C defining misconduct. In substance, under Clause 23C(i) to (iv), the management wanted the political activity or such action of the workmen to be treated as misconduct. Similarly, under Clause 23B, the amendment sought for is:
'No employee during the course of his employment shall neglect and fail to maintain his wife and family nor act in a manner unbecoming of an employee of the company.'
13. Objections were filed by the Union and the Regional Labour Commissioner and the Certifying Officer passed an order on June 30, 1986 modifying the proposal of the management. An appeal was filed by the second respondent and the appeal was disposed of by the order dated July 23, 1986, which is impugned in the above writ petition. The appellate authority has held that to be an office bearer of a political party and indulging in political activity including canvassing for any election within the factory premises to be misconduct. The appellate authority also held that no employee during the course of his or her employment shall neglect and fail to maintain his or her spouse and family in a manner unbecoming of an employee of the company and that is held to be misconduct.
14. It is contended that the amendments to the Standing Orders Nos. 13.41(1) and 13.41(2) to ITI Standing Orders is not legal, in as much as the authority in the earlier portion of his order has accepted the contention of the workmen that the Trade Unions Act provides for a trade union (registered undertaking), political and civic activity, the interest of the members, hence amendment is contrary to the provisions of the Trade Unions Act. Once a member of the trade union is entitled to participate in political activity or civic activity, he cannot but be entitled to be the office bearer or hold a responsible position in the said organisation. Mere holding of the post of an office bearer of a party cannot per se by itself constitute misconduct so as to invite the disciplinary jurisdiction of the employer. For the past 43 years (as in 1992), there was no necessity to impose such a new type of misconduct, and as such the authority should have insisted on the management to justify their proposals. In industrial law political activity of the workmen is never recognised as capable of inviting disciplinary jurisdiction of the employer. Political activity or religious activity is the personal concern of the workman and is alien to the concept of misconduct. Amendment to Standing order No. 13.40 declaring that neglecting of wife/husband by the workman shall be misconduct, is not sustainable as the same is a per se family matter and nothing to do with the master and servant relationship.
15. The objection by the management to the above writ petition is to the following effect: Every person in the service of the Government company constituted under the Companies Act, 1956 is a pubic servant as defined under Section 21 of the Indian Penal Code and there (sic) is not much difference between the government servant and an employee of public sector undertaking. The Government companies are considered as 'State' under Article 12 of the Constitution and the employees engaged therein can seek relief by way of writ petitions under Article 226 of the Constitution as in the case of Government servants. The restrictions imposed on government servants can be similarly imposed on the employees working in Government undertakings. The employees are not barred from participating in political activities. The proposed notification does not take away the rights guaranteed to the citizens to contest election etc. In case the employee wants to contest the elections, they are at liberty to do so after resigning from the services of the company The proposed modifications are neither unconstitutional nor illegal. The management also relied upon the dictum in and AIR 1956 SC 27. It is further submitted that Section 16 of the Indian Trade Union Act permits the constitution of political fund by the union, but it does not mean that the employees are permitted to participate in political activities.
16. If the constitution of the concerned trade union permits formation of a political fund, such union can spend money for political activities; but employees cannot participate in the political activities. The constitution of Telephone Industries Employees Union does not permit creation of such a political fluid and as such this union and their members cannot participate in political activities.
17. W.P. 12787/1992 is again by the management of HAL challenging the correctness of the order dated August 5, 1991 passed by the appellate authority, the third respondent, and praying for quashing the same. It is the case of the petitioner in the Writ Petition that the company is engaged in manufacturing of aero- engines, aircrafts etc; having several divisions at Bangalore complex, and is governed by the Industrial Employment (Standing Orders) Act and the Rules framed thereunder. The Standing Orders were duly certified by the Certifying Officer in the year 968. The said certification was the subject matter of appeal under the provisions of the Industrial Employment (Standing Orders) Act and the appellate authority confirmed the order of the Certifying Officer and as such the Standing Orders are in force from June 16/17, 1969. While so the petitioner company has sought for modification of the existing Clause 25, which deals with misconduct and such an application was filed on May 14, 1985. An objection was filed by the recognised union which was only one union, to which reply was filed by the company. Ultimately, the Certifying Officer passed an order on June 30, 1986 adding the following clause:
'Clause No 25(19): Becoming an office bearer of a political party or organisation which takes part in politics without the prior written permission of the employer.
Clause 25(20): Taking part in election to any Legislature or local authority;
(i) the employee qualified to vote in each election may exercise his right to vote, but where he does so he shall give no indication of the manner in which he proposes to vote or voted;
(ii) an employee shall not be deemed to have contravened the provisions of this order by reason only that he assists to conduct an election or performs a duty imposed on him or under any law for time being in force;
(iii) employer may permit an employee to offer himself as a candidate in election to any Legislature or local authority and the employee so permitted shall not be deemed to have contravened provisions of order.'
18. Against the order of the Certifying Officer, both management and the Union, preferred appeal to the appellate authority. The appellate authority, namely, the third respondent passed an order on August 5, 1991 modifying the Standing Orders and thus aggrieved by the same the present Writ Petition came to be filed.
19. It is submitted that the proposed and modified clauses are:
Proposalmodified by the Certifying Officer:
Modified by the Appellate Authority
Clause No. 25(19): Becoming an office bearer of apolitical party or organisation which takes part in politics without theprior written permission of the employer;
To be an office bearer of a political party;
Clause 25(20): Taking part in Election to any legislatureor local authority.
Including in political activities including canvassingfor any election within the factory premises;
20. It was submitted that the appellate authority has exceeded its jurisdiction under the Act, as their jurisdiction is very limited in the nature and the appellate authority can interfere only in the event of his conclusion that certification is unreasonable, unfair and is opposed to the provisions of the Act. No reason has been given by the appellate authority for modifying the Standing Order as certified by the Certifying Officer. The appellate authority had misconstrued the material on record while arriving at its conclusion. While accepting the principle of ruling, the appellate authority is not justified by holding that no restriction could be imposed on the workmen for becoming an officer bearer of the political organisation. The petitioner is a defence organisation and it cannot suffer any political activities. It is for this reason that modification was sought for by the petitioner. The finding of the appellate authority that proviso would give room for unnecessary litigation, is not correct. The finding of the appellate authority is that canvassing for an election would be contrary to Article 19(a) of the Constitution of India. The employee cannot be permitted to indulge in various political activities either inside or outside the factory premises, as he continued to be the employee of the organisation of the nature of the petitioner. The working and discipline would be jeopardised if the employees of public undertakings are allowed to canvass for any election. The further finding of the appellate authority that the trade unions are permitted to have political objectives and therefore there could not be any restriction, is not sustainable. It is further submitted that the activities of the trade union are governed, under the Trade Unions Act and such Act does not come in the way of the employer imposing certain restrictions in the matter of political activities and also in the matter of contesting elections. On the same lines of objections by the unions concerned in the other Writ Petitions, submissions were made objecting to the claim raised in the above Writ Petition.
21. I have heard Mr. M.C Narasimhan appearing for petitioner in WP. 12533/1992 and WP 20302/1991; Sri M.L.N. Reddy for respondent-1 in WP 12533/1992 and for petitioner in WP 12787/1992 and Sri N. Devadas, Central Govt. Standing counsel, for respondents 2 and 3.
22. The impugned order concerned in W.P. 20302/1991 and 12787/1992 is one and the same. While the workman has challenged the modification made by the appellate authority to the Standing Order in W.P. 20302/1991, the management has challenged the modification to the extent they are affected by filing W.P. 12787/1992. The impugned order in W.P. 12533/1992 concerning, the Standing Orders applicable to the Indian Telephone Industries is also passed by the same Joint Chief Labour Commissioner. The modification of the Standing Order in Clause 13 and Clause 25 of the HAL which is ultimately decided by the Joint Chief Labour Commissioner is one and the same. So far as the Indian Telephone Industries is concerned (hereinafter referred to as ITI), the modification to the Standing Orders under Clause 13 is as follows:
'Clause13(41)(i)
To be an office bearer of a political party;
Clause 13(41)(ii)
Indulging in political activities including canvassingfor any Election within the factory premises.
So far as the other two Writ Petitions are concerned, the same order, which reads as follows:
Clause 25(19)
Clause 25(20)
To be an office bearer of a political party; Indulgingin political activities including canvassing for any Electionwithin the factory Premises.'
Thus the Union attacks these standing orders as not constituting misconduct; while the management of ITI is aggrieved by the Clause 13(40), which reads as follows:
'Clause 13(40)
No employee during the course of his/her employment shall neglectand fail to maintain his/her spouse and family nor act in a manner unbecoming of anemployee of the company;
Clause 13(41)(1)
Becoming an office bearer of a Political partyor organisation which Takes part in politics, without the priorpermission of the employer;
Clause 13(41)(ii)
Takingpart in an election to any legislature orlocal authority, Provided that
i)the employee qualified to vote in suchelection may exercise his right to vote,but where he does so he shall give no indication of the manner in which he proposes to vote or voted;
ii) an employee shall not be deemed to havecontravened the provisions of this orderby reason only that he assists to conductan election or performs a duty imposedon him or under any law for the time being in force;
iii)employer may permit an employee to offerhimself as a candidate to election to any legislature or local authority andthe employee so permitted shall notbe deemed to have contravened the provisions of this order.'
23. I have referred to the above clauses, anyhow for the purpose of convenience the modification proposed in respect of the later two orders are reproduced below:
Proposed modification of the ITI:
25(B)
No employee during the course of hisemployment shall neglect and fail to maintain his wife andfamily nor act in a manner unbecoming ofan employees of the company;
25(C)
Employees are prohibited from participating in thefollowing activities;
(i)To be an office bearer of a politicalParty or an organization whichtakes part in politics.
As Certified by the Certifying Officer:
'Clause 13(40)
No employee during the course of his/her employment shall neglectand fail to maintain his/her spouse andfamily nor act in a manner unbecoming of an employee of the company;
Clause 13(41)(i)
Becoming an office bearer of a political partyor organisation which takes part in politicswithout the prior permission of the employer.
As modified by the Appellate Authority:
Clause 13(41)(i)
To be an office bearer of a political party;
Clause 13(41)(ii)
Indulging in political activities including canvassingfor any election within the factory premises.
Proposed modification of HAL:
Clause25 (19)
Becoming an office bearerof a Political party or an organisation which takespart in politics;
Clause25(20)
Taking part in or assisting in any manner any movement/agitation or demonstration of a political nature;
Clause25(21)
Taking part in any electionto any Legislature or local authority and
Clause25(22)
Canvassing in any election to any Legislature or local authority.
As Certified by the Certifying Officer:
Clause 25(19)
Becoming an office bearer of a political partyor organisation which takes part in politicswithout the prior written permission of the employer;
Clause 25(20)
Takingpart in election to any legislature or local authority;
(i)the employee qualified to vote in suchelection may exercise his right to vote,but where he does so he shall give no indication of the manner in which he proposes to vote or voted;
(ii)an employee shall not be deemed to havecontravened the provisions of thisorder by reason only that heassists to conduct an election or performs a duty imposed onhim or under any law for the time being inforce.
(iii)employer may permit an employee to offer himself as a candidate to election toany legislature or local authorityand the employee as permittedshall not be deemed to have contravened the provisions of the order.
As modified by the Appellate Authority:
'Clause25(19)
To be an office bearer of a political party;
Clause 25(20)
Indulging in political activities including canvassingfor any Election within the factory premises;
24. The reasons for the proposed amendment, according to the management, with reference to political party which are divided into four sub-categories. The HAL is a public sector undertaking under the Ministry of Defence Production, Government of India. Any slackness in the defence production will affect the nation's preparedness. Placing restriction on the political activity of the workmen employed is in public interest. It is known that the workmen engaged in political activities would support the ideologies of the political parties which will contradict each other and endanger the interest of the industry in particular and the nation in general. It is also not uncommon that the workmen following the ideologies of political parties drag the issues which have arisen due to political differences into the establishment with a view to settle scores and thereby create disturbances in the establishment which will not only vitiate industrial peace and harmony, but also adversely affect valuable production and productivity. The four different clauses were to the effect that the employee shall not become an office bearer of a political party, should not take part in or assisting in any manner in any movement/agitation or demonstration of a political nature; take part in any election to any legislature or local authority and finally canvassing in any election to any legislature or local authority.
25. The contentions raised by the union was that amendments to the Standing Orders can be only in terms of Sections 4, 5 and 6 of the Industrial Employment (Standing Orders) Act. The conditions laid down are that the Standing Orders or amendments must be in conformity with the Model Standing Orders prescribed by the Appropriate Government. The proposed amendment must be fair. In the Model Standing Orders prescribed by the Central Government there are no such standing orders as at present proposed by the management. The right to participation in the election or in the political activities or political nature or participation in election to any legislature or local authority is a constitutional and statutory right conferred by law. The employer cannot take away the right by using coercive power and prescribing an exercise of a statutory right as a misconduct. Political parties are recognised institutions vitally needed in a democratic set up. To suggest that participation in activities of political parties or even being an office bearer is a misconduct is absurd and untenable. It is claimed that constitutional and statutory right cannot be defeated by this way. The further contention is that the Trade Unions Act, 1926 provides for setting up of a political fund apart from the general funds. Sections 15 and 16 of the said Act is recognition of the right of the trade union to participate in the political activities including setting up of candidates for election. Thus the present Standing Orders are intended to interfere with trade union activities and the trade union and its members. It was further resisted on the ground that the proposed amendments are nothing to do with the employer employee relations and misconduct for which punishment can be imposed must have some relations to work the workmen is required to undertake. Mainly it must relate to work in the workspot. Extensions to outside the premises must have direct effect on the work in the workspot. It is contended by the union that the employer cannot arrogate to himself the role of the morals of the employees and as such there cannot be a standing order prescribing participation in political activities as misconduct.
26. The employer is a public company registered under the Companies Act. In the Articles of Association or Memorandum there is no provision to restrict the power of appointment of either directors or employees of the company to those who are non political. In other words, Directors can be chosen even from among those who are politically active. The Union further contended that in fact persons like O. Ramanujam, General Secretary, have adorned the post of Director of Public Sector Companies. Hence, the employer submits that the company cannot propose to prescribe a conduct which has not been found necessary for the companies' set up. The word politics has no precise meaning. The amendment will directly thwart the genuine activities of a trade union and the trade unions cannot realise their demands against their employer unless they are able to bring political pressure on either the ruling party or those in the opposition. The political parties cannot discharge their functions unless they are in touch with trade union. Further when the political parties are recognised at law and membership of a political party is not banned, it is unreasonable to suggest that a workman cannot be an office bearer of a party.
26. The second misconduct suggested is to take part in or assist in any manner in any movement/agitation or demonstration of a political nature. In this provision, the words of a political nature is very vague, which will include a normal trade union demonstration. This provision is the grossest possible violation of the right to organisation statutorily guaranteed. It is also unconstitutional being violative of Article 19. Participation in election proposed and items 3 and 4 of the amendment are unconstitutional and contrary to Trade Unions Act. The proposed amendments are inconsistent with the very concept of misconduct as understood in industrial law. It was further submitted that the Standing Orders have been in force for more than 20-30 years.So far the managements have not found thenecessity for incorporating such a clause in theStanding Orders though elections on adultfranchise have been going on at least since1952. Hence, non-interference in trade union'sfreedom including the political activities is amust. Participation in the election was alwaysthe policy of the employer and must be deemedas a customary privilege which cannot beinterfered with. At any rate, there is no validjustification for such an arbitrary provision inthe Standing Orders. This is the first stand takenby the Union with reference to the StandingOrders proposed by the HAL Company.
28. The trade union further contended that a responsible body like the National Labour Commission recognised the need for trade union to influence the policy decision in the. interest of the workers and the need of operating on many fronts such as social, economic, civic and political. This character of the role of trade union has been recognised in the Trade Unions Act, Sections 15 and 16. The position continues even today and in England. The position of political fluid under the British Trade Union Law, i.e.t Trade Unions Act, 1913 prescribes participation in the manner in which the present union is intending for. The said position is continuing even today and in England there is no amendment to get rid of political activities of trade unions. As long as the Trade Unions Act and the said policy in respect of trade unions is one which permits political activities by a trade union member, it is illegal to suggest that participation in political activities amounts to an actionable misconduct. This would be inconsistent with the provisions of the Trade Unions Act. The political rights of every citizen including the workmen is protected and recognised in the case of Kameshwar Prasad v. State of Bihar : (1962)ILLJ294SC wherein the Apex Court has accepted the principle.
29. In Life Insurance Corporation of India, there was regulation 25 which is exactly similar to that one proposed by the management in respect of provisions of political activity. This regulation has been subsequently dropped by the LIC in the conduct rules applicable to the LIC employees. It is submitted that in the case of Agnani v. Badridas 1963-I-LLJ-684 the Supreme Court has pointed out that it would be impudent and unreasonable on the part of the employer to improve the morale or ethical tone of the employees' conduct. Thus the amendment was challenged.
30. On behalf of the workmen of Indian Telephone Industries, petitioner in W.P. 12533/1992, it is submitted that Clause 23(B) provides that it would be an actionable misconduct, if the workmen concerned neglects or fails to maintain his wife and family. Firstly, no such provision is found in HAL Standing Order or in any other Public Sector Undertakings like BEML nor is there any such provision in the case of non-workmen. Secondly, the question as to whether an employee maintains his family or not is purely a personal matter, which relates to moral or ethical standards which the employer expects from the workmen. Such a provision cannot be subject matter of Standing Order governing the employer employee relationship. The learned counsel relied upon the dictum Agnani v. Badridas, (supra) which is to the following effect 1963-I-LLJ-684 at 691:
'It would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees' conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction.'
It was further submitted that there are Certified Standing Orders for the past 30 years or more providing for certain acts of misconduct, which admittedly did not contain such provision. No material has been placed to show any difficulty in operating the existing Standing Orders in this behalf. It was further submitted that the provision regarding maintenance etc. of the family is some what incongruous to the working of the Standing Order as certified which is quite vague. The act of misconduct proposed cannot be traced to or related to the work he is required to discharge in terms of contract of employment.
31. It was further contended by the respondent that the second set of Standing Orders proposed deals with the right of an employee to participate in certain activities like being an office bearer of a political party etc. Standing Order Clause 13(41)(i) provides for becoming an office bearer of a political party or organisation which takes part in politics without the prior permission of the employee. This particular amendment will have serious repercussion on the established rights of the Trade Unions. It takes within its ambit not merely the office bearer of a political party, but also other organisations which take part in politics. The later portion of the order which refers to organisations taking part in politics would refer to a recognised registered trade union. Trade unions do take part in demonstration etc., as against the policies of the Government in so far as it hurts the interest of the workmen. They may have to demand changes in law or improvement in the economic policies so as to safeguard the interest of workmen as a class. These genuine trade union activities will also attract the provisions of the amended standing orders. It cannot be said that they should take permission of the employer, these being legal activities of a trade union. Section 15 of the Indian Trade Unions Act provides for maintenance of a political fund different from general fund. This would indicate that maintenance of political fund and other incidental and related activities are all recognised by law. Trade Union Act is a pre-constitutional legislation and follows the pattern of similar legislation in Britain. The maintenance of such funds is also referred to in the book on TRADE UNION by RICHARD KIDNER. Secondly, the imposition of restriction that an employee cannot become an office bearer of a political party is again an unwarranted restriction. If an employee can become a member of a political party, there is no reason as to why he should not become an activist or a formal office bearer. When he becomes a member of a political party, he is governed by the rules of that particular political party. The restriction imposed by the employer in terms of Standing Order cannot operate to the detriment or derogation of the rules of that party. As long as he discharges his duties satisfactorily in the shop floor during the prescribed time, his conduct cannot be found fault with. The efficiency or otherwise of the workmen depends on his devotion to work and on the framework of the shop floor discipline and the atmosphere created for his work inside the establishment.
32. The following cases, namely, Gurushanthappa v. Abdul Khudhus Anwar : [1969]3SCR425 , Aklu Ram Mahto v. Rajendra Mahto : [1999]2SCR362 are instances where workers have participated in the elections to the State Legislature and the objections in this regard were overruled by the Supreme Court. This goes to show that such political activities being a member of the legislature by workmen of Public Sector undertaking have been recognised at law. Hence, treating participation in politics etc., as a misconduct is not at all justified. In Kameshwar Prasad v. State of Bihar (supra) and O.K. Ghosh v. E.X. Joseph : (1962)IILLJ615SC certain limited rights have been recognised even in the case of Government Servants in view of Article 19(1)(a)(1) of the Constitution. The right to demonstration in respect of their condition of service has been recognised. In Capt. M. Paul Antony v. Bharat Gold Mines : (1999)ILLJ1094SC , the Supreme Court has held as follows 1999-I-LLJ-1094 at 1102:
'31. On joining Government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee.'
So, if this be the position in respect of Government servants, in the case of employees of Public Sector Undertakings which are set up purely for commercial purposes and treated as commercial undertakings in budget etc., the freedom to participate in the democratic process should not be restricted in the manner proposed. It is also necessary to see the distinction, the type of service rendered under Government and under Commercial Undertakings like HAL and ITI. There is functional difference. The Government servants are required to administer public law. While Government enters into contract, it is governed by ordinary law of contract. This functional difference ought to be kept in view while judging the need for or necessity for the provisions of the type sought to be approved by the appellate authority. Incidentally, in State of M.P. v. Ramashankar Raghuvanshi : (1983)ILLJ299SC , the Supreme Court had occasion to consider the case of termination of a servant on the basis of police report that the employee had taken part in RSS. Further, in Hindustan Antibiotics Ltd. v. The Workmen : (1967)ILLJ114SC the Supreme Court recognised the difference between the Government servants and employees of public sector undertakings. The Supreme Court was not prepared to equate the two. What applied to Government servants need not apply to employees of public sector undertakings. This has been referred to since Government servants have been required not to participate in politics. The amendments as proposed appear to derive inspiration from the fact that the Government servants are not expected to participate in politics. Further, in The Workmen of Orissa State Commercial Transport Corporation Ltd. v. Orissa State Commercial Transport Corporation Ltd. 1975 Lab IC 1233, a Division Bench of the Orissa High Court disapproved of a Standing Order providing for ban against participating in politics etc.
33. Lastly, it is submitted that the Standing Orders as certified earlier have held the field for more than 30 years. There was no necessity found to incorporate the latest amendment. The existing Standing Orders are exhaustive of the misconduct that can be perpetuated by an employee. Employer has nowhere been or at no time been prevented from taking action in respect of the misconduct mentioned therein. The amendments proposed are more in the nature of qualification for employment and have nothing to do with the functions he discharges, failure to discharge any function can alone be considered as misconduct. There is no such restriction in being a Director or a Secretary of a Workers' Co-operative Society looking after the welfare of workers. It is also discriminatory inasmuch as such restrictions are not applicable in private organisations. It is also pertinent to raise the question as to whether a restriction as proposed in the Standing Order can be included in the case of Public Sector Undertakings as a rule in respect of recruitment. It is submitted that the restriction is violative of Articles 14 and 21 of the Constitution.
34. The word 'political' has been defined in THE LAW LEXICON in the following terms:
'The word 'political' is defined to be pertaining to the policy or the administration of Government.
The word 'political' in its higher and true, sense, means that which pertains to the Government of a nation. In this sense it includes the entire system of its law -constitutional and statutory. In the fundamental law, the people first establish the framework of their political system. They establish the limitations and boundaries of power, and those principles which are to stand as permanent guides for the future action of the Government. Within the limits thus established, the subsequent policies of the nation are regulated by its law.
Political, politic, We speak of political government as opposed to that which is ecclesiastical; and of politic conduct as opposed to that which is unwise and without foresight; in political questions, it is not politic for individuals to set themselves up in opposition to those who are in power; the study of politics, as a science, may make a man a clever statesman; but it may not always enable him to discern true policy in his private concerns.'
35. In the book titled as TRADE UNION by RICHARD KIDNER, MA., B.C.L., published by the London Stevens & Sons, Chapter 13, under the concept of Social Security and Trade Union Law deals with the control of political activities, a reference has been made to that chapter which deals with the use of political fund. In fact in the Trade Unions Act, 1913, there was restriction that applies to the political objects as defined under Section 3(3) of the Act. It is seen that therefore the union is free so long as it authorised to do so by its rules to use the general fund for political activities outside the statute. The political object on which that Section was made applicable was with the expenditure of the money. The reference to such a principle will not apply to our country as the law therein is different, in as much as the country itself is ruled by the Liberal Party. Even in the book there is no reference to a workman becoming an office bearer without the permission of the management.
36. In the case of Devendrappa M.H v. Karnataka State Small Industries Development Corporation, : [1998]1SCR919 the Apex Court considered whether making public statements against head of organisation on political issue amounts to lowering prestige of organisation and whether it can be protected as individual freedom of speech and expression and proper functioning of organisation. The Apex Court held as follows at p. 1208 of LLJ:
'In the present case, the appellant had made a direct public attack on the head of his organisation. He had also, in the letter to the Governor, made allegations against, various officers of the Corporation with whom he had to work and his conduct was clearly detrimental to the proper functioning of the organisation or its internal discipline. Making public statements against the head of the organisation on a political issue also amounted to lowering the prestige of the organisation in which he worked. On a proper balancing, therefore, of individual freedom of the appellant and proper functioning of the Government organisation which had employed him, this was a fit case where the employer was entitled to take disciplinary action under Rule 22.'
Thus the Supreme Court did not approve the direct participation in political arena by an employee of the organisation. The dictum of the Supreme Court in D. R. Gurushanthappa v. Abdul Khuddus Anwar (supra) was relied to show that election to legislative assembly of the workman is proper and he may be a candidate under Article 19(1)(a) of the Constitution. That will not apply to the facts of this case, because there the question arose as to workman who was holding an office of profit under a local or any other authority under the control of the Central Government or State Government. This is what the Supreme Court has held:
'In the case of election as President or Vice-President the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution in the office of profit is held under a local or any other authority under the control of the Governments and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body, like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President. The disqualification laid down under Article 19(1)(a) of the Constitution is not intended to apply to the holder of an office of profit as Superintendent Safety Engineering Department of a Company under the control of Government.'
37. The dictum in Nripendra Nath Banerjee v. Senior Deputy Accountant General, Posts and Telegraphs : AIR1960Cal283 is relied upon, which is as follows:
'The rules contemplated that permission should be asked even for offering himself as a candidate. In this case the petitioner applied for leave but did not wait for the permission to be granted before he offered himself as a candidate for election. That by itself was in violation of the rules.
The rules did not compel Government to communicate the reasons for refusal of permission to the Government servant asking for such leave.
Then again, the contention that the rules did not contemplate an order upon aGovernment employee to resign his post could not be accepted. The rule is that before a Government servant offers himself as candidate for a seat in a Municipality he should obtain permission. If he fails to do so, and continues to take part in the election in violation of the rules and is ultimately elected, it does not lie in his mouth to take the objection that the rules do not apply in his case because he has already been elected.
The basic fact was that the petitioner could not be permitted to act both as a Councilor to the Corporation and as a Government servant. It was for him to choose, and he had been given ample opportunity of making a choice. He could not be allowed to carry on in both capacities, which clearly violated the rules.
Whether the facts in a given case constituted special reason for granting permission, it was for the competent authority to consider and not for the Court.'
38. Reliance was also placed on the dictum in Sreerama B.N. v. State of Karnataka 1986-I-LLJ-166 (Kant) which is as follows at p. 166:
'Restrictions imposed as per Sub-clauses (vi) and (vii) of Clause 2 prohibiting an employee of private institution from accepting private tuition or publishing 'notes or keys' are same as the one imposed on Government servants and object is to subserve the interest of students.
Established practice of authorities prohibiting Lecturers/Readers from accepting private tuition and/or publishing notes or keys is extended to staff in aided institution'. Even after joining service, the petitioners cannot claim fundamental right as they are subject to various rules regulating service conditions framed in conformity with the Constitution.
'8. There is no disparity between Lecturers/Readers working in Government Colleges and staff in aided institutions beyond what the reason for its existence demand'. In this regard, restrictions referred to above are all reasonable restrictions.
'11. Restrictions of this type strike a balance between freedom guaranteed and social control permitted by Clause 6 of Article 19 of the Constitution. The object of imposition of these restrictions is to have control or discipline on staff to sub-serve the interest of institution as well as the State. These are conducive for proper administrative control over the staff and management of the institution and cannot be termed as unreasonable.'
39. On behalf of the respondents-workmen the following citations were relied upon:
The dictum in Agnani (W. M.) v. Badridas (supra) is as follow 1963-I-LLJ-684 at 691:
'It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct, rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees' conduct in relation to strangers not employed in his concern by use of the coercive process of disciplinary jurisdiction. When standing orders were framed, there is no difficulty because they define misconduct.
When we bear in mind the background of the dispute, the nature of quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Court's conclusion that the Tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connection, it is necessary to emphasize that the Tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the Tribunal when it was dealing with the industrial dispute referred to it.'
40. Reliance was also placed in D.R. Gurushanthappa v. Abdul Khuddus Anwar (supra) to the following effect:
'Where after the transfer of an undertaking from Government to a Company, the power to appoint and dismiss a person working as Superintendent, Safety Engineering Department of the Company does not vest in the Government or in any Government servant, and the power to control and give directions as to the manner in which duties of the office are to be performed by the said workman also does not vest in the Government, but in an officer of the Company, and even the power to determine question of remuneration payable to the workman is not vested in the Government; in these circumstances the indirect control exercisable by Government because of its power to appoint directors and to give general directions to the Company cannot make the post of Superintendent, Safety Engineering Department of Company, as office of profit under the Government.
In the case of election as President or Vice-President the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control, of the Governments and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President. The disqualification laid down under Article 191(1)(a) of the Constitution is not intended to apply to the holder of an office of profit as Superintendent, Safety Engineering Department of a Company under the control of Government.
In view of Section 19 (as substituted by Act 47 of 1966), the holding of an office in a company, in the capital of which the Government has not less than 25 per cent share, is not covered by the disqualifications laid down in Art icles 102(1)(a) and 191(1)(a), as, otherwise, this provision will beredundant. Even Parliament, when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the Company. The fact that the entire share capital in the Company in question is owned by the Government does not, make any difference.
The principles which will apply to the Company will be on par with those applicable to other Government Companies or Companies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, or that the control exercised by its Directors or the Managing Director over employee of the Company cannot be held to be control exercised by the Government.
For purposes of determining disqualification for candidature to a Legislature, it will not be appropriate to attempt to lift the veil and equate Company with the Government merely because the share capital of the Company is contributed by the Government.'
41. The dictum in Aklu Ram Mahto v. Rajendra Mahto, : [1999]2SCR362 which is relied upon, is as follows:
'The respondent Rajendra Mahto (in Civil Appeal No. 7538 of 1997) was working as a Khalasi in the Bokaro Steel Plant of the Steel Authority of India Ltd., at the material time. This is a Level- VII post in the said plant. The respondent Ashok Kumar Srivastava (in Civil Appeal No. 7644 of 1997) was working as a Meter Reader in the Bokaro Steel Plant of the Steel Authority of India Ltd., This is Level VII post. The Steel Authority of India Ltd., is a company in which the entire share holding is held by the Union Government. Section 10 of the Representation of People Act, 1951 provides as follows:-
Disqualification for office under Government Company. - A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.'
The Court dealt with Article 191(a) of the Constitution along with Section 10 of the Representation of People Act, 1951. It said that the disqualification laid down under Article 191(1)(a) of the Constitution is not intended to apply to the holder of an office of profit of a company under the control of the Government. It is Section 10 of the Representation of People Act, 1951, which deals with the holding of an office of profit in a company in the capital of which the Government has not less than 25% share. Otherwise this Section will be redundant. Also, Parliament when passing the Act did not consider it necessary to disqualify every person holding an office of profit under a Government Company. It limited the disqualification to persons holding the office of Managing Agent, Manager or Secretary of such a company. Therefore, the fact that the entire share capital in a company is owned by the Government does not obliterate the distinction between 'Article 191(1)(a) of the Constitution and Section 10 of the Representation of People Act, 1951.'
42. In my opinion, Clauses 19 and 20, as certified by the appellate authority so far as the amendment is concerned, it could be held to be compact, concise and covers in general all aspects of the case. The appellate authority found that the Model Standing Orders do not lay down types of misconduct for the employees and the employer to certify and list these whenever required. The misconduct detailed in model Standing Orders are not exhaustive. The appellate authority following the dictum of this Court in S.K. Seshadri v. Hindustan Aeronautics Ltd., reported in 1983-II-LLJ-410 (Kant) found that the management comes within the meaning of Article 12 of the Constitution of India. But they cannot be equated with the Government servants, but could be equated only with the employees. The appellate authority also considered the decision of the Allahabad High Court in Shamalal Sharma v. L.I.C. which has been upheld by the Supreme Court : (1975)ILLJ399SC declaring clauses dealing with the ban on political activities of the employees of the LIC as void and inoperative as they violate Sub-clauses (a), (b) and (c) of Article 19(1) of the Constitution. The distinction was drawn rightly too by the appellate authority that if the employee becomes office bearer of the political party, in that event, their participation will make way to politics to enter into the industry and make inroad in it; that is certainly not proper nor conducive for the industrial peace and harmony. Therefore, instead of making it a political organisation, the certifying officer thought it fit to include the word only 'political party'. But an organisation becomes political only when (sic) it is normally attached to a party. In this democratic country an organisation cannot be called political if it is not tainted with any party colour or flavour. In that respect the only omission of the word 'organisation' does not serve the purpose at all and I feel it proper to include the word 'political party' or 'political organisation', as suggested by Clause 25(19). In fact the appellate authority has even taken away the right of both the workmen and the management. Clause 25(19) as suggested by the management was that the employee can become an office bearer of a political party or organisation provided he gets written permission of the employer, whose such continuous right is conferred upon the workmen, that is sought to be taken away by the appellate authority, which, in my opinion, is not correct.
43. In fact in the grounds made out in the petition there is no serious objection to Clause 25 (19) as it stood except the contention was that there was no necessity to impose such new type of misconduct. The submission that in industry normally political activity of a workman is never recognised as capable of inviting disciplinary jurisdiction of the employer and that political activities and religious activities are personally concerned with the workman and alien to the concept of misconduct, is not correct and cannot be accepted. In fact the appellate authority has considered the result of such clause not being there, which may affect the industrial peace and smooth running of the industry as well. Clause 25(19) and 25(20), as proposed by the management and certified by the Certifying Officer is comprehensive thereof and in this view I hold that the clauses made by the Certifying Officer shall be upheld.
44. The final clause in the Standing Order instead of shortened clause as certified by the appellate authority is as below:
'Clause 25(19) - Becoming an office bearer of a political party or organisation which takes part in politics without the prior written permission of the employer;
Clause 25(20) - Taking part in election to any legislature or local authority;
(i) the employee qualified to vote in each election may exercise his right to vote, but where he does so he shall give no indication of the manner in which he proposes to vote or voted;
(ii) an employee shall not be deemed to have contravened the provisions of this order by reason only that he assists to conduct an election or performs a duty imposed on him or under any law for the time being in force;
(iii) employer may permit an employee to offer himself as a candidate to election to any legislature or local authority and the employee so permitted shall not be deemed to have contravened provisions of order.'
The above finding disposes of both the Writ Petitions, namely, W.P. Nos. 12787/1992 and 20302/1991.
45. Clause 13(40) is essential for the purpose of maintaining discipline in the industry and it is aimed to have a mental peace in the home so that the workman can do his work peacefully without being affected by any activity in the home or failure of his duty to render his rights enshrined upon law as well as moral code on him. In a society intending to move forward with the social reforms such clause is essential and really speaking nobody can have an objection to the same. The objection, in my opinion, is made for the sake of objection and there is no reason for the appellate authority for permitting of such amendment, which is an error committed by the Certifying Officer.
46. In W.P. 12533/1992 the other clauses are the subject matter of the Standing Order 13 (41)(i) and 13 (41)(ii) which are the same as found in the impugned order concerned in the two Writ Petitions, referred to (supra). The contention raised by the Union of the workmen was that for nearly 43 years there was no necessity to impose such a new type of misconduct and as such the authority should have insisted on the management to justify the proposal. That action, inasmuch as the order is more or less in similar terms and Clause 13(41)(i) and 13(41)(ii) is found to be abbreviated form of the order passed by the Certifying Officer in 13(41)(i) and 13 (41)(ii), which are as follows:
Clause 13 (40)
No employee during the course of his/her employment shall neglect and fail to maintain his/her spouse and family nor act in a manner unbecomingof an employee of the company.
Clause 13(41)(i)
Becoming an office bearer of a political party or organisation which takes part in politics, withoutthe priorpermission of the employer.
Clause 13(41)(ii)
Taking part in anelection to any legislature or local authority, provided that-
i) The employee qualified to vote in such election may exercise his right to vote, but where he does so he shall give no indication of the manner in which he proposes to vote or voted;
ii) An employee shall notbe deemed to have contravened the provisionsof this order by reason only thathe assists to conduct an election orperforms a duty imposed on him or underany law for the time being inforce;
iii) Employer maypermit an employee to offer himself as a candidate to election to any legislature or local authority and the employee so permittedshall not be deemed to have contravened the provisions of this order.
I feel it proper to restore the order of the Certifying Officer instead of abbreviated form of the Appellate Authority.
47. In this view, the Writ Petitions are disposed of in the manner above indicated.