JUDGMENT
Rebello, J.
1. All these three petitions are being disposed of by this common judgment as in all these three petitions what is impugned, are the orders dated 11th December, 1991 and 23-11-93 of the Certifying Officer and the Appellate Authority, respectively.
2. Writ petition No. 231 of 1994 has been filed by the Maharashtra General Kamgar Union (MGKU). The union claim to represents substantial number of workmen employed with respondent No. 1 company. The respondent No. 1 had submitted draft standing orders for certification for the marketing divisions of Bombay area which was wrongly described in the draft submitted, as Bombay area and Marketing Division. Thereafter the Certifying Officer issued notices to various unions including MGKU, which filed its objections to the draft standing orders, on 18th January, 1985. On considering the objections the Certifying Officer was pleased to pass an order certifying the standing orders with modifications by order dated 14th October, 1991. The petitioner-MGKU partially aggrieved by the order of the Certifying Officer, preferred an appeal to the appellate authority on 8th December, 1991. The appellate authority was thereafter pleased to dispose of the appeal by an order dated 23.11.1993 with modifications alongwith other appeals. Being aggrieved by the orders of the Certifying officer and appellate authority, the petitioner-union has preferred this writ petition impugning the two orders to the extent that they are aggrieved.
3. Writ Petition No. 776 of 1994 has been field by the Petroleum Employees Union which also claims to represents a large number of clerical employees of the 1st respondent. Subsequent to the submission of the draft Standing Orders for certification, notice was also issued to the Petroleum Employees Union. The Petroleum Employees Union also filed its objections to the draft Standing Orders. The Certifying Officer was pleased to certify the draft Standing Orders with modifications. The Petroleum Employees Union did not prefer any appeal but filed objections which were heard by the appellate authority. The appellate authority thereafter was pleased to dispose of all appeals before it by common order on 23rd November, 1993. Being partially aggrieved by the two orders the Petroleum Employees Union has preferred this petition.
4. Writ petition No. 1462 of 1994 has been filed by the Bharat Petroleum Kamgar Union (BPKU) which also claims to present a substantial number of employees of the respondent No. 1. The BPKU filed its objections on receipt of notice from the Certifying Officer to the draft Standing Orders submitted by the 1st respondent. The Certifying Officer certified the Standing Orders with modifications by his orders dated 14th October, 1991. The BPKU, aggrieved by the said order of the Certifying Office, preferred an appeal to the appellate authority which was heard alongwith other appeals pending before it. The appellate authority thereafter by a common order, disposed of the appeal filed by the BPKU on 23rd November, 1993. Partially aggrieved by the two orders the petitioner-BPKU-Union preferred this petition.
5. The respondent No. 1 was incorporated sometime in the year 1976. In terms of the Industrial Employment Standing Orders Act, 1946, which hereinafter shall be referred to as the Act, on the provisions of the said Act becoming applicable to any establishment, the establishment had to submit within six months of the Act becoming applicable draft Standing Orders for certification. It may be mentioned that between the period the Act becomes applicable to the industrial establishment and submission of draft Standing Orders for certification and till they are certified, model Standing Orders framed by the appropriate Government are applicable to the industrial establishment. The respondent No. 1 submitted draft Standing Orders for certification on 4th December, 1985. The Certifying Officer, on receipt of the said draft Standing Orders, was pleased to issue notices to the various Unions representing the workmen in the establishment of 1st respondent. The Unions on whom notices were served were amongst other petitioners in Writ Petition No. 231 of 1994, Writ Petition No. 776 of 1994 and Writ Petition No. 1462 of 1994. Two other unions representing the employees of the 1st respondent were also issued notices and they are the Petroleum Workers Union and All India Petroleum Labour Union. The Certifying Officer heard all objections filed by the various Unions who appeared at the hearing which took place on various dates. Thereafter the Certifying Officer was pleased to certify the Standing Orders by his order dated 14th October, 1991 after making certain modifications as he thought were necessary to make the Standing Orders certifiable. The Certifying Officer was, however, pleased to hold that the certified Standing Orders would only cover industrial establishment of Bharat Petroleum Corporation Ltd. in the Bombay area of their Marketing Division.
6. Partially aggrieved by the Standing Orders as certified by the Certifying Officer, the 1st respondent company preferred an appeal before the appellate authority. Appeals as already set out were also preferred by the petitioners in Writ Petition No. 231 of 1994, and 1462 of 1994. The appellate authority thereafter on hearing the Parties and on considering various objections made certain modifications to the Standing Orders as certified by the Certifying Officer by his order dated 23rd November, 1993. It may also be noted that by consent of the various parties that appeared before the appellate authority, the Standing Orders were made applicable to the Western Region of the Marketing Division of the Bharat Petroleum Corporation Ltd. The Western Region of the Marketing Division includes the States of Maharashtra, Gujarat, Madhya Pradesh, Goa and Karnataka. A notification has been produced which shows that the appellate authority has jurisdiction over the States of Maharashtra, Gujarat, Goa and Madhya Pradesh whereas Karnataka is not included. As none of the petitioners have challenged the same, the said question need not be gone into.
7. Arguments have been advanced on behalf of all the three petitioner-unions as well as on behalf of the respondent No. 1 by their respective counsel. Before dealing with the arguments it would be necessary to examine the scheme of the Act for the purpose of deciding the issues raised in these petitions. The preamble to the said Act reads as under :
“Whereas it is expedient to require employees in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them.”
Section 3 of the Act, requires an employer to submit to the certifying officer, within six months from the date on which the Act becomes applicable to an industrial establishment, five copies of the draft Standing Orders proposed by him for adoption in his industrial establishment. The draft Standing Orders, as required to be submitted by the employer under sub-section (2) of section 3 of the said Act have to contain provisions 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 Standing Orders. Section 4 of the Act sets out that the Standing Orders are certifiable 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 the Act. A further duty is cast on the Certifying Officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders submitted for certification. In terms of the Act, Rules have been framed by the Central Government which are known as Industrial Employment (Standing Orders) Central Rules, 1946. Schedule I to the Central Rules, contains for model Standing Orders in respect of Industrial Establishments not being Industrial Establishments in Coal Mines. In so far as the Coal Mines are concerned the Central Government has framed separate model Standing Orders. These rules have been tabled in each House of Parliament, as these rules have been made by the Central Government for industrial establishments where it is the appropriate Government. In the petition before us we are concerned with model Standing Orders framed for industrial establishments not being industrial establishments in Coal Mines. Vide section 2(b) of the said Act, the appropriate Government has been defined. The appropriate Government as defined by section 2(b) means in respect of industrial establishment under the control of the Central Government or Railway Administration or in a major port, mine or oil field, the Central Government and in all other cases the State Government. In the present case the industrial establishment is under the control of the Central Government, and as such the draft model Standing Orders framed by the Central Government for industrial establishments, other than the coal mines apply to the industrial establishments, of the respondent No. 1.
8. The object and scheme of the Act has been considered by various judgments of the Apex Court. In the case of Management, Shahadara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union , the Apex Court has observed as under :
“The Act was passed because the Legislature though that in many industrial establishments the conditions of services were not uniform and sometimes were not even reduced to writing. This led to conflicts resulting in unnecessary industrial disputes. The objects of passing the Act was thus to require employers to define with certainly the conditions of service in their establishments and to require them to reduce them to writing and to get them compulsorily certified. The matters in respect of which the conditions of employment had to be certified were specified in the schedule to the Act”.
In the United Provinces Electric Supply Co. Ltd. v. T.N. Chatterjee and Ors. – The Apex Court has observed as under :
“… Not only the object but the scheme of the Act is such that the employers must define precisely the conditions of employment of all the employees and have the same certified by the Certifying Officer against whose orders an appeal lies to the appellate authority. The right given to workmen to express their view and to raise objections is of great significance. They can even ask for modification of the Standing Orders in accordance with section 10 of the Act. Every possible safeguard has been provided for keeping the workmen informed about their conditions of service so that they can take whatever steps they desire or are advised to take in their interest before the Certifying Officer or the appellate authority”.
9. Thus what emerges is that the object and scheme of the Act is to provide for precision in the terms and conditions of employment of the employees, so that each employees’ when he is employed, knows with certainty as to what are the specific terms and conditions of his services. Considering the scheme as set out, it will now be necessary to deal with the various contentions raised by the petitioners and respondents in these petitions.
10. The petitioners in these petitions have partly challenged the orders of the Certifying Officer as also the appellate authority in certifying the draft Standing Orders as also the modifications made by the Certifying Officer at the time of certification of the Standing Orders and changes and modifications made by the appellate authority in the Standing Orders as certified by the certifying officer. The Standing Orders which are challenged can be broadly classified under four heads i.e. :
(a) Standing Orders 6.6, 17.1, 17.3, 20.2, 20.3, and 20.4. Though these Standing Orders were challenged by the petitioners yet from the record it is seen that no such challenge was thrown to these Standing Orders before the Certifying Officer. It may, however, be mentioned that in appeal before the appellate authority the petitioners raised objections to the said Standing Orders.
(b) Standing Orders 28.9, 28.10 and 28.33 have been challenged on the ground that the misconducts defined therein are vague and also not connected with the business or property of the company and that they should be clarified by this Court either by adding or substituting words to the said Standing Orders to make them certain. It may however, be mentioned that these points were not raised either before the Certifying Officer or before the appellate authority.
(c) The third group of Standing Orders which have been challenged are Standing Orders 7, 9.2, 6.7, 15.3, 17.2, 20.5, 20.6, 24.2, 28.17, 28.18, 28.23, 28.25, 28.26, 28.27, and 28.32 as being vague.
(d) The last category of Standing Orders which have been challenged and which seems to be the real bone of contention and in respect of which considerable arguments have been advanced are Standing Orders 5.1, 6.3, 16.5, 17.4, 28.4, 28.5 and 29.4.
Thus as the Standing Orders have been categorised into four groups the challenge to the said Standing Orders will have to be considered on different grounds which are set out hereinafter.
On behalf of the petitioners, the propositions canvassed can be summarised as under :
(a) that the impugned Standing Orders are to consistent with the model Standing Orders and as such could not have been certified by the Certifying Officer.
(b) that many of the impugned Standing Orders certified are vague, capable of being misused and there was no material on record to show that they are fair or reasonable.
(c) that no Standing Order could be certified in respect of an item not specified in the schedule and hence Standing Order 6.3 as certified and pertaining to promotion which item is not included in the schedule of the Act was without jurisdiction.
(d) that the Standing Orders can only be certified if they are not in consistent with the provisions of any other law and if certified such Standing Order cannot be said to be fair and reasonable.
(e) that if there is any cognate legislation in the region, which has accepted a statutory principle, the said principle must be followed while interpreting similar provisions in any other cognate legislation.
(f) that the High Court if it finds that the Standing Orders are not precise, or consistent with the model Standing Orders, could itself make the Standing Orders precise by substituting or supplying the words.
In support of the above propositions the following judgments have been cited :
(a) The Associated Cement Co. Ltd. v. P.D. Vyas & Ors. .
(b) Rohtak & Hissar Districts Electric Supply Co. Ltd. v. State of Uttar Pradesh and Ors. AIR 1996 SC 1471.
(c) The United Provinces Electric Supply Co. Ltd. v. T.N. Chatterjee and Ors. .
(d) Western India Match Co. Ltd. v. Workmen .
(e) Division Bench judgment of this Court in Poona Labour Union v. State of Maharashtra & Ors. 1969 II LLJ. 291.
11. In reply to the petitioners, the 1st respondent has contended as under :
(a) The Standing Orders as certified are consistent with the model Standing Orders and if there is any departure it is for practical reasons which are fair and reasonable and to make them precise.
(b) No Standing Order certified is vague or capable of being misused and there is always annulment of discretion when a power is conferred on an authority. Conferring of discretionary power would not render the Standing Order illegal.
(c) If any Standing Order is not directly referable to an item in the schedule but if there is a nexus between the Standing Order and an item in the Schedule read with the preamble to the Act then it cannot be said that such a Standing Order is illegal.
(d) There is no absolute right in a workman to be represented by a counsel or attorney or by a member of the Union who is not an employee and this can be excluded by contract of employment, Standing Orders or by statute.
(e) Misconduct outside the premises has also been included whenever such misconduct has a direct bearing on functioning and discipline in the establishment.
(f) The orders of the Certifying Officer and the appellate authority do not disclose any error of jurisdiction or any error of law apparent on the face of record.
(g) The High Court in exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India cannot supply words, even if some Standing Orders seems to be ambiguous. Proper remedy open to such an aggrieved person is to move under section 10 of the Act for modification of the Standing Orders.
In support of the above contentions the Learned Counsel for the respondents relied upon the following judgments :-
(a) N. Kalindi and Ors. v. M/s. Tata Locomotive & Engineering Co. Ltd. .
(b) Bagalkot Cement Co. Ltd. v. R.K. Pathan & Ors. .
(c) Mulchand Electrical & Radio Industries Ltd. v. The Workmen .
(d) The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors. .
(e) Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. & Ors. .
(f) A.L. Kalra v. The Project and Equipment Corporation of India Ltd. .
(g) Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation and Anr. .
(h) K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. .
(i) Cresent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi 1993 I CLR 253.
(j) Syndicate Bank v. K. Umesh Nayak 1994 II CLR 753.
(k) D.K. Yadav v. J.M.A. Industries Ltd. 1993 II CLR 116.
12. The Learned Counsel for the petitioners while advancing arguments have contended that the Court should bear in mind that the Act is a beneficial legislation and it must be so interpreted so as to advance the object of the said Act i.e., to make the terms and conditions of employment certain and in consonance with the provisions of the model Standing Orders. For the said purpose the Learned Counsel for the petitioners have drawn our attention to the judgment of the Apex Court in Western India Match Co. Ltd. (supra) wherein the Apex Court has observed as under :
“In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the unity of this law. But the experience of the working of this law over a long period has belied their faith. Later generations discovered that the workman did not possess adequate bargaining strength to secure fair terms and conditions of service. When the workmen also made this discovery, they organised themselves in trade unions and insisted on collective bargaining with the employer. The advent of trade unions and collective bargaining created new problems of maintaining industrial peace and production for the society. It was therefore considered that the society has also an interest in the settlements of the terms of employment of Industrial labour. While formerly there were two parties at the negotiating table the employer and the workman, it is now thought that there should also be present a third party, the State, as representing the interest of the society. The Act gives effect to this new thinking. By section 4, the Officer certifying the Standing Order is directed to adjudicate upon “the fairness or reasonableness” of the provisions of the Standing Order. The Certifying officer is the statutory representative of the society…”
13. Meeting this argument the learned Counsel for the Respondent No. 1 has relied upon the judgment of the Apex Court in Syndicate Bank (supra) wherein in para 31 of the said judgment the Apex Court has observed as under.
“With the emergence of the organised labour, particularly in public undertaking and public utility services, the old balance of economic power between the management and the workmen has undergone a qualitative change in such undertakings. Today, the organised labour in these institutions has acquired even the power of holding the society at large to ransom, by withholding labour and thereby compelling the management to give in on their demands whether reasonable or unreasonable. What is forgotten many times, is that as against the employment and the service conditions available to the organised labour in these undertakings, there are millions who are either unemployed, under-employed or employed on less than statutory minimum remuneration. The employment that workmen get and the profits that the employers earn are both generated by the utilisation of the resources of the society in one form or the other whether it is land, water, electricity or money, which flows either as share capital, loans from the financial institutions or subsidies and exemptions from the Governments. The resources are to be used for the well-being of all by generating more employment and production and ensuring equitable distribution. They are not meant to be used for providing employment, better service conditions and profits only for some. In this task, both the capital and the labour are to act as the trustees of the said resources on behalf of the society and use them as such. They are not to be wasted or frittered away by strikes and lockouts. Every dispute between employer and the employee has, therefore, to take into consideration the third dimension, viz., the interest of the society as a whole, particularly the interest of those who are deprived of their legitimate basic economic rights and are more unfortunate than those in employment and management. The justness or otherwise of the action of the employer or the employee has, therefore, to be examined also on the anvil of the interest of the society which such action tends to affect. This is true of the action in both public and private sector. But more imperatively so in the public sector. The management in the public sector is not the capitalist and the labour an exploited lot. Both are paid employees and owe their existence to the direct investment of public funds. Both are expected to represents public interest directly and have to promote them.
14. Thus between these two conventions the Court is called upon to draw a line. Fortunately the Court need not go into that exercise as there are guidelines in the Act itself as to under what circumstances the Certifying Officer or the Appellate Authority can certify the draft Standing Orders. Section 3 of the said Act specifically requires that the draft submitted must contain every matter set out in the schedule which is applicable to the industrial establishments and where model Standing Orders have been prescribed, the draft Standing Orders shall be so far as is practicable in conformity with such model. Section 4 has cast a duty on the Certifying Officer or Appellate Authority to make the Standing Orders certifiable under the Act, if provision is made therein for every matter set out in the schedule which is applicable to the industrial establishment, and the Standing Orders are otherwise in conformity with the provisions of the said Act; and whether such Standing Orders are fair and reasonable”. It is no doubt true as observed by the Apex Court in the case of Western India Match Co. Ltd. (supra) that while adjudging the fairness or reasonableness of any Standing Order, the certifying officer should consider and weigh the social interest in the claims of the employer and the social interest in the demands of the workmen. This has to be the touchstone on which fairness or reasonableness of the Standing Orders have to be considered by the Certifying Officer or the Appellate Authority. Keeping the above principles in mind let us consider the various propositions in support or apposition to the Standing Orders as certified and assailed in these petitions.
15. The first category of standing orders i.e., standing orders 6.6, 17.1, 17.3, 20.2, 20.3 and 20.4, were not the subject matter of any challenge before the Certifying Officer. If that be so it is reasonable to presume that the various Unions, which appeared before the Certifying Officer did not challenge the fairness or reasonableness of the said standing orders. Merely because the challenge is thrown to the standing orders before the appellate authority would not give cause to the petitioners to contend that the standing orders are neither fair nor reasonable. It was incumbent upon the petitioners to produce material before the appellate authority to show unfairness or unreasonableness of the said Standing Orders. The petitioner unions and/or other unions have not produced any material nor lead evidence in support of their pleas and in the absence of such material or evidence, it cannot be said that merely because the fairness and reasonableness of the Standing Orders were assailed before the appellate authority, the petitioners can contend before this Court that the Court should exercise its extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India to judge the fairness and/or reasonableness of the Standing Orders. In the first instance there is no material before this Court; secondly it is also not pointed out in what manner these standing orders are not in conformity with the model standing orders and that it is not shown that they are not covered by an item in the schedule. Therefore this challenge of the petitioners in so far as this group of the standing orders are concerned is not maintainable and has to be rejected.
16. Coming to the second group of the Standing Orders i.e., Standing Orders 28.9, 28.10 and 28.33 are concerned the challenge to these Standing Orders are on the ground that they are vague and that acts not connected with the business or property of the employer could also be the subject matter of a charge-sheet. The Learned Counsel for the petitioners has contended that it is true that the contentions raised before this Court were not raised either before the Certifying Officer or the appellate authority. The Counsel contends that this Court should, in its extra-ordinary jurisdiction, still consider the fairness and/or reasonableness of these Standing Orders. The Court could have looked into the matter if there was no other remedy available to the petitioners to get the said Standing Orders modified if aggrieved. Section 10 of the Act, provides a remedy to an aggrieved party, even though the standing orders are certified, to apply for modification before the Certifying Officer. This remedy being available to the petitioners, the petitioners if still aggrieved and if so advised, are still free to move the appropriate authority to get the said standing orders modified. Hence the challenge to the second group of standing orders does not survive.
17. Coming to the third group of Standing Orders i.e., 7, 9.2, 6.7, 15.3, 17.2, 20.5, 20.6, 24.2, 28.17, 28.18, 28.22, 28.25, 28.26, 28.27 & 28.32, the challenge to the said Standing Orders is that they are vague and/or liable to be misused, in the sense that discretion is left in the authority under the said Standing Orders and there are no guidelines for the exercise of this discretion; that the very aim and object of the Standing Orders being to make the conditions of service certain it is advisable that the so-called discretion if any be excluded. It is true that merely because discretion is reposed in a high authority does not necessarily mean that the discretion will always be used fairly. In that context the Apex Court has observed that the presumption that because discretion is vested in a high authority, will not be misused is neither supported by history nor does experience justify it. However, it must be borne in mind that in every area of human activity there is always an element of discretion. There cannot be a hard and fast rule that the discretion cannot be left in the hands of an authority. In the present case the petitioners have not been able to point out that the discretionary powers in the hands of the authority are ex-facie capable of being misused. The counsel for the respondents has relied, in this connection, on the decision of the Apex Court in re-Special Courts Bill at and another Collector of Customs v. S. Chetty and Anr. . Relying on the said authorities it is contended and rightly so, that the apprehension that there may be misuse is no ground to strike down the validity of a general provision. Standing Orders in the present case are well structured and are subject to in-built restriction. In view of the above the challenge of the petitioners to the third group of Standing Orders must also fail.
18. That takes us to the last group of Standing Orders i.e., 5.1, 6.3, 16.5, 17.4, 28.4, 28.5 and 29.4. Lengthy arguments have been advanced to challenge the validity of each of the said Standing Orders. It will therefore be proper to deal with the challenge to each Standing Order, separately.
19. The first challenge of the petitioners is to Standing Order No. 5.1 pertaining to probation. It is the contention of the Learned Counsel for the petitioners that the model Standing Order provide only for a period of three months of probation. It is further contended that the Certifying Officer for the reasons set out in his order had certified the Standing Order for a period of six months only, which could be extended for a further period of six months. It is however, pointed out that the appellate authority fixed the period of probation as twelve months and has further permitted the respondent No. 1 to extend the period of probation by a further period of 3 months. The counsel has then drawn our attention that even in the settlement arrived between the parties, which continues to bind the parties and which was in fact the basis for the respondent No. 1 to apply for certification of model standing orders, it was agreed between the parties that the period of probation would be of 12 months. The Learned Counsel therefore contended that apart from the fact that the standing order was not in conformity with the model standing order, the standing order was not in confirmity with the existing settlement, between the Unions and the respondent No. 1. Once there is a settlement between the parties it is now contended that certification of standing orders contrary to the settlement, would be neither fair nor reasonable. The petitioners therefore contend that this Court should strike down the Standing Order as certified by the appellate authority and maintain the Standing Order as certified by the certifying officer.
It is further contended after pointing out to the various provisions of the Act that once the Certifying Officer after considering the cumulative effect of various provisions and material before him had certified the Standing Order pertaining to probation as certifiable, the appellate authority even though it exercises independent powers, could not have altered and/or modified the Standing Order as certified by the Certifying Officer, unless there was material before him to so act, and as such departure was not fair and reasonable. In the instant case there being no such material, the appellate authority acted beyond its jurisdiction in certifying the Standing Order 5.1 with the modification.
20. The learned counsel for the respondents contended that in fact there has been no substantial departure by the appellate authority from the Standing Order as certified by the Certifying Officer. All that the appellate authority has done is to permit the employer to further extend the period of probation for a period of 3 months if the employee cannot be confirmed within the period of 12 months, that such a provision in fact is in the interest of employees themselves, inasmuch as in the extended period of probation their performance could be considered by the employer to arrive at a conclusion weather to retain the employee in service or not; that this departure could hardly be said to be neither fair nor reasonable. The appellate authority while discussing the said Standing Order for the purpose of certification has considered the settlement between the parties; the model Standing Orders, the Standing Orders of the respondent No. 1 in respect of its other establishments in Bombay and other regions, and also the Standing Orders of the Indian Oil Corporation. After considering all the above factors, the appellate authority has partly accepted the plea of the respondents in extending the period of probation, whereas the respondent No. 1 had sought extension for a period of six months, the appellate authority has restricted such an extension only for a period of three months beyond the initial period of twelve months. It is true that the settlement provides initially for a period of six months with a further extension of six months beyond the initial period of twelve months. It must however be borne in mind that the entire concept of probation is to enable the employer to judge the performance and suitability of an employee for confirmation or retention in service. A short period of probation would not be in the interest of the employees themselves. Therefore a reasonable period has to be prescribed. The period of six months and the extended period of six months has been clubbed together by the appellate authority. The extended period of three months is only in the event it is extended in writing. This cannot be said to be totally inconsistent with the settlement and consequently the material considered by the appellate authority and the modification cannot be said to be either unfair or unreasonable. The plea of the petitioners therefore the quash the order of the appellate authority and retain the standing order as certified by the Certifying Officer must be rejected.
21. That takes us to the challenge made on behalf of the petitioners in respect of Standing Order 6.3 pertaining to promotions. It is the contention of the petitioners that the Certifying Officer could have certified the Standing Orders if and only if there was an item in the schedule to the Act; that in the instant case a perusal of the schedule to the Act would show that there is no such item and as such both the Certifying Officer and the appellate authority have acted without jurisdiction in certifying the Standing Order 6.3. The Learned Counsel for the petitioners invited our attention to the provisions of Sections 3 and 4 of the Act. Sub-section (2) of section 3 provides that the draft Standing Order submitted for certification shall contain every matter set out in the schedule which may be applicable to the industrial establishment. Section 4 provides that the Standing Order shall be certifiable under the Act, if the provision is made therein for every matter set out in the schedule which is applicable to the industrial establishment. From a bare reading of the said two sections and on a proper construction, Learned Counsel for the petitioners points out that it must lead to one and only conclusion, that it, that the Standing Order can contain only those matters which are set out in the schedule. In support of his contention the learned counsel for the petitioners relied upon the judgment of the Apex Court in Rohtak And Hissar Districts Electric Supply Co. Ltd. (Supra). In paragraph 15 of the said judgment the Apex Court has observed as under :
“Then in regard to the matters which may be covered by the Standing Orders, it is not possible to accept the argument that the draft Standing Orders can relate to matters outside the Schedule…”
Further in paragraph 16 of the said judgment it is observed as under :
“Thus the true position appears to be that under section 3(2) of the Act the employers have to frame draft standing orders and they must normally cover the items in the schedule to the Act. If, however, it appears to the appropriate authorities that having regard to the relevant facts and circumstances, it would (sic 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”.
The petitioners also relied upon the judgment of the Apex Court in The United Provinces Electric Supply Co. Ltd. (supra). However a perusal of the said judgment would show that the issue before us was not considered. In fact a perusal of paragraph 13 of the said judgment would show that the Apex Court was considering a judgment of the Madras High Court wherein the Madras High Court had made observations that there was no bar to the Standing Orders making a provision for matters other than those specifically mentioned in the schedule so long as the Certifying Officer certifies them on the ground that they are fair and reasonable. A perusal of the said paragraph further shows that the Apex Court, however, did not proceed further to examine the matter as the same was not required to be decided in that case. It may be pertinent to note that the attention of the Apex Court was not invited to the judgment is Rohtak and Hissar Districts Electric Supply Co. Ltd. wherein the point was directly in issue and had been answered.
22. The counsel for the respondent No. 1 drew our attention to the judgment in Bagalkot Cement Co. Ltd. (supra) to show that the Apex Court itself in that case has considered an item not covered by the schedule. A proper consideration of the said judgment would show that what is contended for and on behalf of the respondent No. 1 is not correct. In that case the Apex Court considered that the schedule contained a provision or stipulation as to the authority and the procedure for leave and holidays and that such a stipulation would necessarily include a provision in respect of quantum of holidays and leave and this construction would be consistent with the meaning of the word ‘condition’ as contained in the preamble to the Act. Apart from that it may also be pointed out that in the subsequent judgment in Rohtak and Hissar Districts Electric Supply Co. Ltd. the Apex Court has clearly answered the point that the Certifying Officer cannot certify a Standing Order not included as an item in the schedule. At the highest what emerges from the judgment in Bagalkot Cement Co. Ltd. is that if there is a nexus between a Standing Order and a item in the schedule then by taking aid of the preamble, pertaining to conditions of service, such a Standing Order could be certified. Therefore we are in no doubt that the Order of the Certifying Officer and the Appellate Authority was without jurisdiction. It may however, be pointed out in all fairness that during the course of arguments, the Learned Counsel for the respondent No. 1 on instructions submitted that the respondent No. 1 is agreeable to have the said item deleted from the said Standing Order. In view of the same, Standing Order No. 6.3 stand excluded from the certified Standing Orders as approved by the Certifying Officer and the Appellate Authority.
23. The next challenge by the petitioners is to standing order 16.5. Standing order 16.5 is in respect of loss of lien when the workman remains absent beyond the period of leave originally granted or subsequently extended unless he (a) returns within 8 days of the expiry of the leave and (b) explains to the satisfaction of the employer or the officer specified in this behalf by the employer his inability to return before the expiry of his leave. The learned counsel further points out that there is no provision in the standing order for show cause notice; that the effect of the termination would be to deprive the employee of his employment and therefore the right of livelihood and consequently the standing order ought to have contained a provision pertaining to a show cause notice before the order of termination.
On behalf of respondent No. 1 it is pointed out that the right of hearing or show cause notice is in-built in the provision itself and that there was no need for specific provision in the Standing Order itself. The Learned Counsel for the respondent drew our attention to the decision of the Apex Court in the case of D.K. Yadav (supra). In the aforesaid case the Apex Court has observed as under :
“… It is a settled law that certified Standing Orders have statutory force which do not expressly exclude the application of the principles of natural justice”.
In paragraphs 8 and 9 of the said judgment it is further observed as under :
“The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case…..”
“….. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice”.
Thus it is contended by the Learned Counsel for the respondent that as the order of termination would involve civil consequences requirement of natural justice is in-built in the provisions themselves.
24. It must, however, be pointed out that the entire scheme and the object of the Standing Orders is to make certain the conditions of service. A bare reading of the Standing Order would show that in the event of an employee fails to move an application within the period of time as set out he would loose his job without any opportunity as there is no provision for hearing or show cause notice in the Standing Order itself unless the same are read into the Standing Order. At this stage it may be pointed out that there was no objection to the said Standing Order as certified before any of the authorities by the petitioners. However, it is not so much as a duty cast on the respondents but a duty which the certifying officer must discharge. In considering a Standing Order for certification, the certifying officer should take care to certify a standing order without leaving scope for an industrial dispute. To argue that the principles of natural justice must be read into such a standing order will defeat the very purpose of providing certainty. At this stage the learned counsel for the petitioners pointed out that if after the words ‘he should’ and before the words ‘lose his lien’ the words ‘be liable to’ are included, every eventuality will be looked after and in that event a right of show cause notice would be contemplated and that the same would be in consonance and conformity with the model standing orders. The learned counsel for the respondent No. 1 has fairly conceded to this position and agreed that words ‘be liable to’ be included in the standing order 16.5. It is true that ordinarily this Court would not have supplied the words but would have relegated the matter to the competent authority. In this case, however, as both the parties are agreeable we see no reason not to issue such a direction and to add the words as agreed. For the aforesaid reasons nothing further need to be said and the Standing Order stands modified with inclusion of words “be liable to” in between the words ‘he should’ and ‘lose his lien’.
26. The next standing order of which grievance has been made by the petitioners is standing order 17.4(2) pertaining to payment of leave wages. It was contended by the learned counsel for the petitioners that this standing order is contrary to the provisions of section 81 of the Factories Act, 1948. Section 81 of the Factories Act reads as under :
“A worker who has been allowed leave for not less than four days in the case of adult and five days in the case of a child shall, before his leave begins, be paid the wages due for the period of the leave allowed”.
Our attention was also invited to Standing Order No. 38 as certified by the authority which reads as under :
“Nothing contained in these Standing Order shall operate in derogation of any law applicable or to the prejudice of any right under an agreement, settlement or award or the time being in force or contract of service, if any, or custom or usage of the establishment.”
It is the contention of the petitioners that the Standing Order 17.4 is in derogation of the provisions of the Factories Act wherein the period stipulated is four days and as such the Certifying Officer and the appellate authority acted without jurisdiction in certifying the said Standing Order. The contention of the petitioners has considerable force. Standing Orders have merely statutory flavour whereas section 81 of the Factories Act is a provision of a statute, therefore it is the provisions of section 81 of the Factories Act that must prevail over standing orders. The learned counsel for the respondent No. 1 has conceded to this position. Apart from that it may be pointed out that the certifying officer while certifying the Standing Order has certified it to read ‘five days’ for the words ‘twelve days’ as contained in the draft Standing Orders. The appellate authority did not interfere with the order of the Certifying Officer. However, the certified Standing Order shows the period as 8 days. This must obviously be typograhical error. Nothing, further therefore, be said in the matter and as such Standing Order 17.4(2) will stand modified in conformity with the provisions of section 81 of the Factories Act.
27. That takes us to the challenge that is raised to Standing Orders 28.4 and 28.5. The major challenge to these standing orders is that even acts or incidents outside the establishments have been included as misconducts. Any activity on the part of the employee outside the establishment it is contended cannot be construed to be misconduct on the premises or precincts thereof; that if such a power is conferred on the disciplinary authority then in that event there is a possibility of misusing such a standing order. The Learned Counsel for the petitioners points out that even in the case of Acts which have no bearing on the relationship of employee and employer and matters pertaining thereto could be subject matter of charge-sheet if the standing order is allowed to exist, as certified.
28. Counsel for the respondent No. 1 in answer to the above submission, submits that the misconduct as certified, pertains to disciplinary action, where the act of an employee will have adverse effect on discipline in the factory. The Learned Counsel for respondent No. 1 in this context invited our attention to the judgment of the Apex Court reported in the case of Mulchandani Electrical & Radio Industries Ltd. wherein in paragraph six the Apex Court has observed as under :”
“In other words, an act wherever committed, if it has the one effect of subverting discipline or good behaviour within the premises or precincts of the establishment, will amount to misconduct under Standing Order 24(1)…”
The Learned Counsel for the petitioners also drew our attention to the fact that the requirement of certification is that the conditions must be specifically set out with precision and accuracy and not be subject to vagaries of subjective evaluation. That after the judgment in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut , the Supreme Court has pointed out that unless misconduct alleged has been clearly included as a Standing Order, the workmen could not be charge-sheeted for misconduct if it was not included in the Standing Orders. In this context the Learned Counsel for the petitioners has relied upon the judgment of the Apex Court in A.L. Kalra (supra) wherein the Apex Court has reiterated the principle which it took in Glaxo Laboratories case wherein it has observed as under :
“… everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say expost facto that some acts of omission or commission nowhere found to be enumerated in the relevant Standing Order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant Standing Order but yet a misconduct for the purpose of imposing a penalty.”
The same principle has again been reiterated in Rasiklal Vachajibhai Patel’s case (supra). It is therefor contended by the respondent No. 1 company that the Standing Orders have to be framed with precision and accuracy and to cover those acts even outside the precincts or premises which will have the effect on general discipline in the establishment and this is what has been done by the Company Certifying Officer and the Appellate Authority. It is further argued that there is a general expectation of certain decent behaviour by an employee towards his fellow employee including officers.
28A. The arguments on behalf of the respondent No. 1 has considerable merit. Once the Act itself requires that the conditions of service must be defined with precision and accuracy and the Law as interpreted by the Apex Court requires that the charge-sheeted employee must know in advance what are the misconducts that can be charged with, it cannot be said that the Certifying Officer and the appellate authority acted without jurisdiction in certifying the said Standing Orders. Misconducts on the precinets and/or on the extended premises, as has been explained by the Apex Court has also a direct bearing on the discipline in the establishment and as such the need to include and define the misconducts. After all misconduct is something more than a mere breach of a term of the agreement or the rule. It must ordinarily be something which must impinge upon the conduct expected of an employee with reference to or in discharge of his duties as an employee or violation of a condition subject to which he was conferred a benefit as an employee or the violation of a special obligation imposed upon him as a condition for the conferment of a privilege upon him or must be something relating to discipline. Merely because an act takes place outside the establishment it cannot be argued that it cannot amount to misconduct or conversely that an employee can be charged for misconduct for an act outside the premises which has no connection with the discipline in the premises. The argument cannot be countenanced as the act for which the workman is charged must have a direct bearing on discipline in the establishment and hence the argument must be negatived. No other ground has been taken to challenge the certification of these Standing Orders.
29. That takes us to the contention regarding representation by an office bearer of an Union at the domestic inquiry. Considerable time was taken by the parties in arguing this point. The Learned Counsel for the petitioners pointed out that the model Standing Orders for industrial establishment other than coal mines framed by the Central Government include a provision for appearance by office bearer of the Union. The Standing Orders become applicable to the respondent No. 1 on its incorporation in the year 1976; that the said practice was continued till the interim order of the Apex Court in the present matter on 30.9.1994. It is further pointed out that in the draft Standing Orders as submitted by the respondent company, a provision for representation by a member of the Union was not included. It is pointed out that it is the certifying officer who provided for representation by the office bearer of the Union to bring the Standing Order in conformity with the model Standing Orders. It is further contended by the petitioners that various model Standing Orders framed by the State of Maharashtra i.e. in the case of Manual and Technical Workman Standing Order 25.4, Clerical and Supervisory Staff – Standing Order 32.4 and Working Journalists – Standing Order 48.3, a provision has been made for representation by an office bearer of the Union. The Learned Counsel for the petitioners has brought to our notice also the provisions of section 22 of the MRTU and PULP Act which provides for representation by an office bearer of the union. The Learned Counsel relying on the judgment in the case of Poona Labour Union v. State of Maharashtra & Ors. contended that if a statutory principle is recognised in a region, in the interpretation of a cognate legislation, the said principle must be followed while certifying similar legislation. The Learned Counsel for the petitioners pointed out that the appellate authority at the appellate stage has modified the certified Standing Order by the certifying officer solely relying on the judgment of the Apex Court in Crescent Dyes and Chemicals Ltd. It is the case of the petitioners that the aforesaid judgment did not deal with the issue at all i.e. the fairness or reasonableness of a Standing Order at the time of certification and what was involved was the issue as to whether a person other than a person specified in the Standing Order or any statute can represent a workman at a domestic inquiry. It is further contended that paragraph seventeen of the judgment can be properly understood, if one sees that Apex Court was considering the reasons to justify the exclusion of representation in a case where the Standing Orders or law did not provide for the same. The Learned Counsel therefore contended that as such the appellate authority acted without jurisdiction in relying upon the judgment in Crescent Dyes and Chemicals Ltd. in modifying the Standing Order to exclude an office bearer of the Union who was not an employee.
30. The Learned Counsel for the respondent No. 1 in reply contended that there is no inherent right, that a workmen in disciplinary proceeding, must be represented by an office bearer of the union and that this right could be controlled by the contract of employment, by statutory terms and conditions of service or by the provisions of law. In this behalf he has placed reliance upon the decision of the Apex Court in N. Kalindi (supra). The Learned Counsel for the respondent No. 1 drew our attention to the observations of the Apex Court in paragraph 5 of the said decision, which reads as under :
“Our conclusion therefore is that a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a representative of his union; though of course an employer in his discretion can and may allow his employee to avail himself of such assistance”.
Reliance has also been placed in the judgment of the Apex Court in Board of Trustees of the Port of Bombay’s case (supra) wherein in paragraph 12 thereof it is observed as under :
“…. In our view we have reached a stage in our onward march to fair play in action that wherein an enquiry before a domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated”.
The counsel for the respondent No. 1 thereafter has laid stress on the following observations of the Apex Court in paragraph seventeen in the case of Crescent Dyes and Chemicals Ltd., in support of his contention that there is a purpose in exclusion of an outside office bearer from representing, an employee at the enquiry :
“The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch 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”.
The Learned Counsel further contended that an employee can represent a charge-sheeted workman at the enquiry and that includes also an office bearer of an union who is an employee. The order of the appellate authority merely excludes an office-bearer who is not an employee and he cannot be said not to be fair or reasonable.
31. Considering the judgments cited before us it is true that the right to be represented by an office-bearer of the union or by any other employee or by a legal practitioner is subject to either the terms of employment or to the statutory conditions of service as applicable or to any statutory law. Therefore a workman cannot contend that it is his inherent or absolute right to be represented by a union or its office bearer. However, reliance placed by the Learned Counsel for the respondent No. 1 on the judgment in Crescent Dyes and Chemicals Ltd. is misplaced. First and foremost it must be seen that the issue in the case of Crescent Dyes and Chemicals Ltd. was whether the delinquent is entitled to be represented by an Office bearer of another trade union, who is not a member of either recognised union or non-recognised union, functioning within the undertaking in which the delinquent employee is employed, notwithstanding the statutory limitation contained in certified Standing Orders and clause (ii) of Section 22 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Further perusal of paragraphs 6, 8, and 11 of the said judgment show that the issue pertaining to the framing of the Standing Orders or fairness or reasonableness of the Standing Orders was not at all in issue. In fact the observations of the Apex Court in para 17 of its judgment could be explained inasmuch as that the Apex Court has held that the restrictions imposed on the right of representation could be supported for the reasons as set out in the said para.
Hence the judgment in Crescent Dyes and Chemicals Ltd. can be of no assistance to the respondent No. 1 answering the issue involved herein. The case of N. Kalindi has been explained in para 13 of the judgment of Crescent Dyes & Chemicals Ltd. wherein the Apex Court has explained that there is no right of representation unless the Standing Orders recognises the right. Nadkarni’s case is for the proposition that when the other side is represented by a legally trained person the workman would also be entitled to be represented by counsel.
32. A perusal of the order of the Certifying Officer shows that the Certifying Officer has included the provision of representation by an office bearer of the Union to bring the draft Standing Orders in conformity with the model Standing Orders. This was within his powers as set out in Secs. 3 and 4 of the said Act. In fact sections 3 and 4 mandate that the certified Standing Orders must as far as practicable, be in conformity with the model Standing Orders. There was no material whatsoever before the Certifying Officer to show that the provisions in the model Standing Orders were not practicable to be included in the certified Standing Orders.
In fact the modification brought by the Certifying Officer to include office bearers of the union show that he applied his mind and found that it was practicable to do so and in conformity with the model Standing Orders. It may be further seen that the Central Government while framing Standing Orders in the industrial establishment under its control has made a distinction between the model Standing Orders for mines and model Standing Orders for other industrial establishments. In so far as the mines are concerned there is exclusion or representation by an office bearer of the union. But in so far as the other establishments are concerned a right has been conferred on the office bearer of the union to represent the delinquent employee at the domestic inquiry. The model Standing Orders form part of the Rules which is a subordinate legislation. Moreover in various model Standing Orders as pointed out to us in the State of Maharashtra a right has been conferred on an office bearer of an Union to represent the delinquent employee at the enquiry. This right has been further recognised by section 22(ii) of the MRTU and PULP Act. Therefore in a part of the region to which the Standing Order applied a right of representation by an office bearer of the union has been recognised. The principle enunciated by a Division Bench of this Court in the case of Poona Labour Union may not strictly apply as that case was dealing with the recognition of principle in the region. Therefore the certifying officer was within his jurisdiction considering the fact that the model Standing Orders so provide, and other material, that representation by an office bearer of the Union who may not be an employee was practicable. The appellate authority modified the Standing Order as certified by the certifying officer relying solely on the judgment of the Apex Court in Crescent Dyes and Chemicals Ltd. The appellate authority was wrong in doing so as the judgment of the Apex Court in the Crescent Dyes and Chemicals Ltd. was not referable to the reasonableness and fairness of a Standing Order at the time of certification or its practicability.
It must also be borne in mind that the report of the enquiry officer is a basic document, on which punishment is imposed on a delinquent employee. Courts and Tribunals rely on the said report for the purpose of finding out whether the punishment imposed can be sustained or whether the punishment is harsh or disproportionate. The report is based on the evidence which is brought at the enquiry. A report based on an enquiry not properly conducted will have adverse effect on the right of a delinquent employee. It is recognised position that employees from the same establishment may find it difficult to effectually cross-examine the witnesses before their senior officers which may cause manifest injustice to the delinquent employee. This is an additional circumstance. We, are therefore of the view that the order of the appellate authority to the extent it has modified the order of the Certifying Officer excluding office bearers of the Union based solely on the judgment of Supreme Court in Crescent Dyes and Chemicals Ltd. was on a misreading of the said judgment and consequently has to be set aside. Standing Order 29.4 will be as certified by the Certifying Officer with the right of representation by an office bearer of the union, whether such officer bearer is an employee or not.
33. That takes us to the last Standing Order pertaining to the age of retirement. The draft Standing Order did not provide for age of retirement. The Certifying Officer so as to bring the draft Standing Orders has brought in the age of retirement to be 58 years. The Counsel for the petitioners contended that the Certifying Officer could not have done so as the employer had not included a provision for retirement in the draft Standing Orders.
The Learned Counsel for the respondent No. 1 has contended that a duty is cast on the 1st respondent to bring the draft Standing Orders in conformity with the model Standing Orders as far as they are practicable. It is further contended that the Apex Court in the case of K. Nagraja & Ors. (supra) has considered the issue. The Apex Court in that case was considering the action of the State of Andhra Pradesh in reducing the age of retirement from 58 years to 55 years. While considering the said case the Apex Court has observed as under :
“… It was also urged by counsel that by reducing the age of retirement to 55 years, the Government employees were deprived of their right to livelihood. There is no substance in this latter argument because if a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement, at all..”
Thus it is an accepted principle to provide for an age of retirement. The model Standing Orders has fixed age of 58 years. The Certifying Officer and the appellate authority in order to bring the draft Standing Orders in conformity with the model Standing Orders have certified the same. It may be pointed out that age of retirement is included in the model Standing Orders and as such the requirement was to submit the draft Standing Orders in conformity with the model Standing Orders. It cannot be said that the age of retirement was not applicable in the industrial establishment of the respondent No. 1. Therefore the argument on behalf of the petitioners that the action of the Certifying Officer and the Appellate Authority is without jurisdiction, has to be rejected.
34. In the result, following changes are directed to be made in the certified Standing Orders of the respondent No. 1 :
(a) Certified Standing Order 6.3 shall stand excluded.
(b) In Standing Order 16.5 after the words, ‘he should’ and before the words ‘lose his lien’ words “be liable to” shall be included.
(c) In Standing Order 17.4(ii) for the words ‘for not less than 8 days’ shall be read as’ for not less than 4 days.’
(d) Standing Order 29.4 as modified by the Appellate Authority by its Order dated 23.11.1993 is quashed and set aside. The said Standing Order shall be in terms of the Standing Order as certified by the Certifying Officer by his order dated 14.10.1991.
35. Rule made partly absolute in terms of paragraph 34 aforesaid in all the petitions. In the circumstances of the case there shall be no order as to costs.
36. At this stage Learned Counsel for the respondent-Company made a request for stay of this order. Heard counsel. Application rejected. Certified copy expedited.
