Full Judgment Text
2024:BHC-AS:786
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11801 OF 2023
Ajit Bhagwan Sawant ]
Aged : 44 Years, Occupation : Service, ]
Having his address at Room No.8, ]
Sawant Chawl, Lokmanya Nagar No.4, ]
Thane (West), Pin Code – 400606. ] … Petitioner
Versus
1. M/s. Parveen Industries Pvt. Ltd. ]
Through its Managing Director / C.E.O., ]
R 55, 59, 662, TTC MIDC Industrial area, ]
Thane Belapur Road, Rabale, ]
Navi Mumbai, Pin Code – 400701. ]
2. Anil Warang, ]
Works Manager at ]
M/s. Parveen Industries Pvt. Ltd. ]
R 55, 59, 662, TTC MIDC Industrial area, ]
Thane Belapur Road, Rabale, ]
Navi Mumbai, Pin Code – 400701. ]
3. K. T. Dongre, ]
Inquiry Officer at ]
M/s. Parveen Industries Pvt. Ltd. ]
R 55, 59, 662, TTC MIDC Industrial area, ]
Thane Belapur Road, Rabale, ]
Navi Mumbai, Pin Code – 400701. ] … Respondents
Mr. Hamza Lakdawala for Petitioner.
Mr. Avinash Jalisatgi a/w Mr. T. R. Yadav & Ms. Divya Wadekar for
Respondent No.1.
CORAM :- SANDEEP V. MARNE, J.
RESERVED ON :- 04 JANUARY, 2024
PRONOUNCED ON :- 08 JANUARY, 2024
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JUDGMENT :
1. The issue involved in this Petition is about right of a
workman to avail services of a legal practitioner to defend himself in the
domestic inquiry when the Inquiry Officer is a legally trained mind. The
issue arises in the light of challenge set up by the Petitioner to the Order
dated 9 August 2023 passed by the Industrial Court at Thane rejecting
application at Exh.U-2 in Complaint (ULP) No.240 of 2022 claiming
interim relief, inter alia , for permission to engage Mr. Shishir Dhavale as
defence representative in the inquiry.
2. Both the learned counsel have been heard extensively on the
issue and they agree that the Petition can be decided finally. In that light,
Rule which is made returnable forthwith.
3. Considering the narrow controversy involved in the present
Petition, it is not necessary to narrate facts in detail. Suffice it to record
that the Petitioner is working with the Respondent – Company and has
been subjected to domestic inquiry by issuance of chargesheet dated 6
October 2022. The employer has nominated Mr. K. T. Dongre, a practicing
Advocate, as Inquiry Officer. The management representative however is
not a legal professional. Since the Inquiry Officer is a practicing
Advocate, the Petitioner requested that he be granted an opportunity to
engage an Advocate to act as defence representative. Alternatively, he
requested for nomination of Mr. Shishir Dhavale, his well-wisher, to act as
his defence representative. The Inquiry Officer has, however, rejected the
request of the Petitioner for engagement of Mr. Shishir Dhavale to act as
defence representative.
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4. According to the Petitioner, the Respondent – employer was
hurriedly proceeding with the inquiry without granting sufficient
opportunity of defence to him. He, therefore, approached the Industrial
Court, Thane, by filing Complaint (ULP) No.240 of 2022 seeking various
reliefs for withdrawal of suspension order and chargesheet. Alternatively,
he has prayed for permitting engagement of Mr. Shishir Dhavale as his
defence representative. He has also sought various other reliefs such as
conduct of inquiry before the Industrial Court, payment of wages,
compensation, etc. In his complaint, the Petitioner filed application for
interim relief at Exh.U-2 under the provisions of Section 30(2) of The
Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour
Practices Act, 1971 (‘MRTU & PULP Act’). One of the interim reliefs
sought by the Petitioner is to permit him to engage Mr. Shishir Dhavale as
his defence representative in the inquiry. By Order dated 9 August 2023,
the Industrial Court has proceeded to reject the said application at Exh.U-
2, which has necessitated filing of the present Petition.
5. Mr. Lakdawala, the learned counsel appearing for the
Petitioner, would submit that the Petitioner is being targeted as he floated
a rival union and because he continued to remain the sole surviving
member of his union. That, he is deliberately implicated in the false
charges with a view to ensure his ouster from services. Though the
interim application at Exh.U-2 was filed seeking various reliefs, Mr.
Lakdawala would fairly that concede the scope of the Petition is to restrict
the nomination of Mr. Shirish Dhavale as defence representative or any
other person as desired by the Petitioner. In fact, this is a limited prayer
made in the present Petition in addition to the prayer of conduct of de
novo – fresh inquiry after nomination of defence representative.
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6. Mr. Lakdawala would submit that the charges levelled against
the Petitioner are of serious nature and complicated questions are
th
involved in the same. That, the Petitioner is educated only up to 10
standard and is incapable of understanding the complicated charges and
defending himself. That, the Inquiry Officer is a practicing Advocate, who
is not part of the Respondent – Company. That, since an outsider legally
trained mind is being utilized by the employer for conducting inquiry
against the Petitioner, it is incumbent that the Petitioner also needs to be
given an opportunity to defend himself through an Advocate.
Alternatively, Petitioner’s request for being represented through his well-
wisher, who is not an Advocate, ought to have been accepted. That, Mr.
Lakdawala would invite my attention to the provisions of Rule 25 of the
Rules framed under the provisions of Bombay Industrial Employment Act
and would submit that the objective behind formulating Rule 25 of the
Bombay Industrial Employment (Standing Orders) Rules 1959 is to afford
proper and adequate opportunity of defence to the workman. He would
submit that in every case where legally trained person acts as an Inquiry
Officer or Presenting Officer, the workman must be given an opportunity
of defence by engaging an Advocate or at least a well-wisher of his choice.
Additionally, he would submit that whenever serious and complicated
charges are levelled, the workman must be given an opportunity to be
represented through an Advocate or well-wisher of his choice. He would
th
submit that since the Petitioner is educated only up to 10 standard
whereas the management representative is an educated person coupled
with legal background of the Inquiry Officer, the Petitioner must be given
an opportunity of at least nomination of Mr. Shirish Dhavale who does not
even possess any legal background. The Petitioner faces grave charges of
carrying explosives inside the company premises which he is incapable of
defending considering his educational background. That, the members of
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rival union will not assist him and all other employees in the company
have already joined the rival union. In support of his contention, Mr.
Lakdawala would rely upon following Judgments :
(i) Board of Trustees of the Port of Bombay Vs. Dilipkumar
1
Raghavendranath Nadkarni and Others ,
(ii) Ghatge Patil Transport (Private) Ltd. and B. K. Etale and
2
others ,
(iii) J. K. Aggarwal Vs. Haryana Seeds Development Corporation
3
Ltd. and Others ,
(iv) Yeshwant Harichandra Gharat Vs. Clairant Chemicals (I) Ltd.,
4
Mumbai and another.
7. Per contra , Mr. Jalisatgi, the learned Counsel appearing for
Respondent No.1, would oppose the Petition. He would submit that the
inquiry is being conducted in a fair manner by affording full opportunity
of defence to the Petitioner. That, the Inquiry Officer is a neutral authority
who does not present or prosecute the case on behalf of the employer.
That, therefore, the qualification of Inquiry Officer becomes wholly
irrelevant. That, the management representative engaged by the employer
is admittedly not a legally trained person and therefore no prejudice
would be caused to the Petitioner if the inquiry is conducted by the
Respondent No.2. He would accuse the Petitioner of deliberately delaying
the inquiry by filing baseless litigations.
8. Mr. Jalisatgi would further submit that the Apex Court has
repeatedly held that representation through an Advocate does not form
part of principles of natural justice. In support of his contention, he
would rely upon the Judgments of the Apex Court in N. Kalindi and
5
Others Vs. Tata Locomotive & Engineering Co. Ltd., Jamshedpur and
1
(1983) 1 Supreme Court Cases 124
2
Writ Petition No.2250 of 1979, dated 29 March 1984
3
(1991) 2 Supreme Court Cases 283
4
[2010(3) Mh.L.J.] 642
5
(1969) 3 SCR 407 : AIR 1960 SC 914 : (1960) 2 LLJ 228
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6
Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi . He would
further submit that the principle is reiterated by the Apex Court in the
recent Judgment in The Rajasthan Marudhara Gramin Bank (RMGB) &
7
Anr. Vs. Ramesh Chandra Meena & Anr. Relying on the Judgment of the
Apex Court in Saran Motors Private Ltd., New Delhi Vs. Vishwanath and
8
Another , Mr. Jalisatgi would submit that the Apex Court has permitted a
practicing Advocate, who was engaged by the employer as lawyer in
industrial matters, to act as Inquiry Officer. He would pray for dismissal
of the Petition. Mr. Jalisatgi would rely upon the provisions of Section 21
and 22 of the MRTU & PULP Act in support of his contention that neither
Rule 25 nor the provisions of MRTU & PULP Act envisage representation
to the workman through legal practitioner.
9. Rival contentions of the parties now fall for my consideration.
10. Having considered the contentions raised by the learned
counsel appearing for the rival parties, the short issue that is involved in
the present Petition is about right of the Petitioner to be represented by an
Advocate or a well-wisher of his choice to act as the defence
representative.
11. The Industrial Employment (Standing Orders) Act, 1946 is
enacted for requiring employers in the 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
15 of the Act empowers the appropriate government to notify Rules. In
exercise of powers under Section 15 of the Act, the State Government has
formulated and notified the Bombay Industrial Employment (Standing
6
(1993) 2 Supreme Court Cases 115
7
Civil Appeal No.7451 of 2021, decided on January, 04 2022
8
1964 SCC OnLine SC 9
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Orders) Rules 1959. In Schedule-I of the Rules, Model Standing Orders
have been notified for workmen doing manual or technical work. Clause
25 of the Model Standing Orders deal with the procedure for holding
enquiry and punishing the workman. Sub-clause 4 of Clause 25 of the
Model Standing Orders provides as under :
(4) A workman against whom an inquiry is proposed to be held shall be
given a charge-sheet clearly setting forth the circumstances appearing against
him and requiring his explanation. He shall be permitted to appear himself for
defending him or shall be permitted to be defended by a workman working in
the same department as himself or by any office-bearer of a trade union of
which he is a member. Except for reasons to be recorded in writing by the
officer holding the inquiry, the workman shall be permitted to produce witness
in his defence and cross-examine any witness on whose evidence the charges
rests. A concise summary of the evidence led on either side and the workman’s
plea shall be recorded.
Thus, under Clause 25 of the Model Standing Orders, the workman can
be permitted to be defended by any other workman working in the same
department or by any office-bearer of a union, of which he is a member.
Thus, there is no provision under Rule 25 for engagement of any outsider
or an Advocate for being represented by a workman.
12. Sections 21 and 22 of MRTU & PULP Act deal with rights of
recognised and unrecognised unions to appear or act in proceedings
relating to unfair labour practices. Sections 21 and 22 of the MRTU &
PULP Act read thus :
“ 21. Right to appear or act in proceedings relating to certain unfair labour
practices :-
(1) No employee in an undertaking to which the provisions of the Central Act
for the time being apply, shall be allowed to appear or act or allowed to be
represented in any proceedings relating to unfair labour practices specified in
items 2 and 6 of Schedule IV of this Act except through the recognised union :
Provided that, where there is no recognised union to appear, the
employee may himself appear or act in any proceeding relating to any such
unfair labour practices.
(2) Notwithstanding anything contained in the Bombay Act, no employee in
any industry to which the provisions of the Bombay Act, for the time being apply,
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shall be allowed to appear or act or allowed to be represented in any proceeding
relating to unfair labour practices specified in items 2 and 6 of Schedule IV of
this Act except through the representative of employees entitled to appear under
section 30 of the Bombay Act.
22. Rights of unrecognised unions :- Such officers, members of the office staff
and members of any union (other than a recognised union) as may be authorised
by or under the rules made in this behalf by the State Government shall, in such
manner and subject to such conditions as may be prescribed, have a right -
(i) to meet and discuss with an employer or any person appointed by him in
that behalf, the grievances of any individual member relating to his
discharge, removal, retrenchment, termination or service and
suspension;
(ii) to appear on behalf of any of its members employed in the undertaking
in any domestic or departmental inquiry held by the employer. ”
13. Thus, no specific provision is made either under the Standing
Orders or under MRTU & PULP Act for engagement of any outsider or
Advocate as defence representative of a delinquent workmen. Does it
mean that under no circumstances, the delinquent employee can be
permitted to engage services of legal practitioner as defence
representative?
14. Through various juridical pronouncements, it is held that
even in absence of specific provision under the Rules governing conduct
of inquiries, a delinquent employee can be permitted to avail services of
legal practitioner as defence representative. In this regard, it would be
apposite to make reference to some of the decisions of the Apex Court and
of this Court on the subject :
(i) In Board of Trustees of the Port of Bombay ( supra ), the Apex
Court held that in a case where the employer appoints Presenting-
cum-Prosecuting Officer to represent the employer is legally trained,
the delinquent employee can also engage legal practitioner and
denial of request to that effect would vitiate the inquiry. The Apex
Court has held in paragraphs 9, 10 and 11 of the Judgment as
under:
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“ 9. We concern ourselves in this case with a narrow question
whether where in such a disciplinary enquiry by a domestic tribunal the
employer appoints Presenting-cum-Prosecuting Officer to represent the
employer by persons who are legally trained, the delinquent employee,
if he seeks permission to appear and defend himself by a legal
practitioner, a denial of such a request would vitiate the enquiry on the
ground that the delinquent employee had not been afforded a
reasonable opportunity to defend himself, thereby vitiating one of the
essential principles of natural justice
10. Even in a domestic enquiry there can be very serious charges,
and an adverse verdict may completely destroy the future of the
delinquent employee. The adverse verdict may so stigmatize him that his
future would be bleak and his reputation and livelihood would be at
stake. Such an enquiry is generally treated as a managerial function and
the Enquiry Officer is more often a man of the establishment. Ordinarily
he combines the role of a Presenting-cum-Prosecuting Officer and an
Enquiry Officer a Judge and a prosecutor rolled into one, In the past it
could be said that there was an informal atmosphere before such a
domestic tribunal and that strict rules of evidence and pitfalls of
procedural law did not hamstring the inquiry by such a domestic
tribunal. We have moved far away from this stage, The situation is
where the employer has on his pay-rolls labour officers, legal advisers -
lawyers in the garb of employees - and they are appointed Presenting-
cum-Prosecuting Officers and the delinquent employee pitted against
such legally trained personnel has to defend himself. Now if the rules
prescribed for such an enquiry did not place an embargo on the right of
the delinquent employee to be represented by a legal practitioner, the
matter would be in the discretion of the Enquiry Officer whether looking
to the nature of charges, the type of evidence and complex or simple
issues that may arise in the course of enquiry, the delinquent employee
in order to afford a reasonable opportunity to defend himself should be
permitted to appear through a legal practitioner. Why do we say so ?
Let us recall the nature the nature of enquiry, who held it, where it is
held and what is the atmosphere ? Domestic enquiry is claimed to be a
managerial function. A man of the establishment dons the robe of a
Judge. It is held in the establishment office or a part of it. Can it even be
compared to the adjudication by an impartial arbitrator or a court
presided over by an unbiased judge ? The Enquiry Officer combines the
judge and prosecutor rolled into one. Witnesses are generally employees
of the employer who directs an enquiry into misconduct. This is
sufficient to raise serious apprehensions. Add to these uneven scales, the
weight of legally trained minds on behalf of employer simultaneously
denying that opportunity to delinquent employee. The weighed scales
and tilted balance can only be partly restored if the delinquent is given
the same legal assistance as the employer enjoys. Justice must not only
be done but must seem to be done is not a euphemism for courts alone,
it applies with equal vigour and rigour to all those who must be
responsible for fair play in action. And a quasi-judicial tribunal cannot
view the matter with equanimity on inequality of representation. This
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9
Court in M.H. Hoskot v. State of Maharashtra clearly ruled that in
criminal trial where prosecution is in the hands of public prosecutor,
accused, for adequate representation, must have legal aid at State cost.
This will apply mutatis mutandis to the present situation.
11. We are faced with the situation where when the enquiry
commenced, the rules neither provided for permitting the delinquent
employee to be represented by an advocate nor an embargo was placed
on such appearance. The rules were silent on this point. But the
Chairman of the appellant while rejecting the request of the 1st
respondent seeking permission to appear through a legal practitioner
simultaneously appointed M/s R.K.Shetty and A.B.Chaudhary, Legal
Adviser and Junior Assistant Legal Adviser respectively, in the
employment of he appellant as Presenting-cum-Prosecuting Officers.
What does this signify ? The normal inference is that according to the
Chairman of the appellant the issues that would arise in the enquiry
were such complex issues the involving intricate legal propositions that
the Enquiry Officer would need the assistance of Presenting-cum-
Prosecuting Officers. And look at the array of law officers of the
appellant appointed for his purpose. Now examine the approach of the
Chairman. While he directed two of his law officers to conduct the
enquiry as prosecutor, he simultaneously proceeds to deny such legal
representation to the delinquent employee, when he declined the
permission to the 1st respondent to appear through a legal practitioner.
Does this disclose a fair attitude or fair play in action ? Can one imagine
how the scales were weighted and thereby tilted in favour of the
prosecuting officer. In this enquiry the employer would be represented
by two legally trained minds at the cost of the Port Trust while the 1st
respondent was asked either to fend for himself in person or have the
assistance of another employee such as Nadkarni who is not shown to be
a legally trained person, but the delinquent employee cannot engage a
legal practitioner at his cost. Can this ensure a fair enquiry ? The answer
is not far to seek. Apart from any legal proposition or formulation we
would consider this approach as utterly unfair and unjust. More so in
absence of rules, the Chairman of the appellant was not precluded from
granting a request because the rules did not enact an inhibition.
Therefore, apart from general propositions, in the facts of this case, this
enquiry would be a one-sided enquiry weighted against the delinquent
officer and would result in denial of reasonable opportunity to defend
himself. He was pitted against the two legally trained minds and one has
to just view the situation where a person not admitted to the benefits of
niceties of law is pitted against two legally trained minds and then asked
to fend for himself. In such a situation, it does not require a long
argument to convince that the delinquent employee was denied a
reasonable opportunity to defend himself and the conclusion arrived at
would be in violation of one of the essential principles of natural justice,
namely, that a person against whom enquiry is held must be afforded a
reasonable opportunity to defend himself. ”
9
(1978)3 SCC 544 : 1978 SCC (Cri) 468 : AIR 1978 SC 1548 : 1978 Cril LJ 1678
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(ii) In Ghatge Patil Transport (Private) Ltd. ( supra ), the
Apex Court held that even in absence of a specific provision, it is
one of the basic principles of natural justice that when the
delinquent employee is pitted against a legally trained mind and
seeks permission to appear through a legal practitioner, refusal to
grant such request would amount to denial of reasonable
opportunity of defence. The Apex Court held in paragraph 6 as
under :
“ 6. As held by the Supreme Court in the latest case, i.e., Board of
Trustees of Port of Bombay v. Dilipkumar Raghavendranath [1983 –
I.L.L.N. 314] (vide supra), apart from the provisions of law, it is one of
the basic principles of natural justice that the inquiry should be fair and
impartial. Even if there is no provision in the standing order or in law,
where in an inquiry before the 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 th is request would
amount to denial of a reasonable request to defend himself and the
essential principles of natural justice would be violated. In the present
case, apart from the request to be represented by a legal practitioner, the
employee has also prayed for being represented by some well-wisher
from outside or by some union representative from outside. This request
was also not granted. While dealing with this contention, in Para. 16 of
his order, the Presiding Officer of the Labour Court has come to the
conclusion that the person who appeared as a representative of the
employers was the Personnel Officer and from the way in which he
handled the case of the first party in the inquiry, it would have to be said
that he had considerable experience and acumen in the matter of
handling such cases. Such experience was lacking on the part of the
employee. He ultimately came to the conclusion that the inquiry officer
was not justified din refusing permission in the circumstances of the
case. We have gone through the evidence of the inquiry officer adduced
before the Labour Court and from it also it is quite clear that the inquiry
officer was also of the view that the bailiff's evidence would be quite
helpful in the matter. However, according to him, it was the duty of the
employee to produce the witness in the domestic inquiry. The inquiry
officer was of this view obviously for the reason that the charge referred
to a document with which the bailiff was ultimately concerned.
Irrespective of the fact on whom the burden lay for examining the bailiff,
the fact remains that in the absence of assistance from an expert the
employee was handicapped in this respect. Therefore, though we
generally agree with the reasons given by the Presiding Officer for
holding the inquiry as vitiated on that count, we do not agree with the
Presiding Officer when he says that it was only a technical defect. In the
matters of domestic inquiries, if the employee is refused a fair
opportunity of putting forward his case, i.e., his request for being
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represented by an outsider or a union representative or a legal
practitioner, then it cannot be termed only as a technical defect.
However, this will depend on facts and circumstances of each case.
Having regard to the facts and circumstances of this case, in our opinion,
prejudice was considerable and is writ large. In any case, by chis finding
the employer's case is not prejudiced in any way. Before the Labour
Court, he is entitled to lead evidence and prove the guilt of the
employee. His case is not shut out. On the other hand, if the parties are
permitted to adduce evidence before the Labour Court, it will help the
course of justice since in the trial before the Labour Court, the bailiff
also could be examined. Therefore, taking a cumulative view of the
whole matter, in our opinion, this is not a fit case in which we should
exercise the extraordinary Jurisdiction under Art. 226 of the
Constitution of India at this stage. ”
(iii) In J. K. Aggarwal ( supra ), the Apex Court held that
when the Respondent–Corporation therein was represented by its
Personnel and Administration Manager, who was legally trained,
refusal to sanction services of lawyer in the inquiry was not a
proper exercise of discretion resulting in failure of natural justice.
(iv) In Yeshwant Harichandra Gharat ( supra ), a Single
Judge of this Court has held that even if the charges are simple or
uncomplicated, an employee would be entitled to assistance of a
legal practitioner, if the management representative / Presenting
Officer is a legally trained person.
15. Thus, the law by now is well-settled that in absence of any
specific provision in the Standing Orders or Service Rules, wherever
Management Representative / Presenting Officer is a legally trained
person, the workman is entitled to seek assistance of legal practitioner to
defend himself. Therefore, mere absence of provisions in the Rules or
Standing Order does not come in the way of seeking assistance of legal
professional where the employer is represented by a legally trained mind.
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.
16 The issue in the present case is however slightly different.
The management representative in the present case is not legally trained.
The Inquiry Officer is a practicing Advocate. The issue, therefore, is
whether the legal background of the Inquiry Officer would entitle the
Petitioner to seek assistance of a legal professional. In none of the
Judgments discussed above, which are in fact relied upon by
Mr.Lakdawala, the Inquiry Officer was legally trained mind. The Inquiry
Officer merely conducts the inquiry. He is supposed to be neutral who
permits both the sides to lead evidence and makes his recommendations
to the employer, who ultimately takes a final decision in the inquiry. The
recommendations of the inquiry officer are not even binding on the
employer, who is entitled to differ from such recommendations. The
Inquiry Officer thus does not prosecute the case on behalf of the employer
and he is not expected to take side of the management. In that view of the
matter, legal background of the Inquiry Officer would not necessarily
entitle the delinquent – workman to seek assistance of legal practitioner
in every case.
17. Mr. Jalisatgi has relied on various decisions in support of his
contention that representation through Advocate does not form facet of
principles of natural justice. In N. Kalindi and Others (supra), the Apex
Court held that the workman has no right to be represented by
representative of the union and such opportunity is at the discretion of
the employer. The Court held in paragraphs 3, 4 and 5 as under :
“3. Accustomed as we are to the practice in the courts of law to skilful
handling of witnesses by lawyers specially trained in the art of examination and
cross-examination of witnesses, our first inclination is to think that a fair
enquiry demands that the person accused of an act should have the assistance of
some person, who even if not a lawyer may be expected to examine and cross-
examine witnesses with a fair amount of skill. We have to remember, however,
in the first place that these are not enquiries in a court of law. It is necessary to
remember also that in these enquiries, fairly simple questions of fact as to
whether certain acts of misconduct were committed by a workman or not only
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fall to be considered, and straightforward questioning which a person of fair
intelligence and knowledge of conditions prevailing in the industry will be able
to do will ordinarily help to elicit the truth. It may often happen that the
accused workman will be best suited, and fully able to cross-examine the
witnesses who have spoken against him and to examine witnesses in his favour.
4. It is helpful to consider in this connection the fact that ordinarily in
enquiries before domestic tribunals the person accused of any misconduct
conducts his own case. Rules have been framed by Government as regards the
procedure to be followed in enquiries against their own employees. No provision
is made in these rules that the person against whom an enquiry is held may be
represented by anybody else. When the general practice adopted by domestic
tribunals is that the person accused conducts his own case, we are unable to
accept an argument that natural justice demands that in the case of enquiries
into a charge-sheet of misconduct against a workman he should be represented
by a member of his Union. Besides it is necessary to remember that if any
enquiry is not otherwise fair, the workman concerned can challenge its validity
in an industrial dispute.
5. 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.”
.
18 In Crescent Dyes and Chemicals Ltd. (supra), the Apex Court
held that a delinquent has no right to be represented through counsel or
agent unless the law specifically confers such a right. The Apex Court held
that imposition of restrictions by statute or Standing Orders on the right
of representation is valid. The Apex Court held in paragraph 17 as
under :
“17. It is, therefore, clear from the above case-law that the right to be
represented through counsel or agent can be restricted, controlled or regulated
by statute, rules, regulations or Standing Orders. A delinquent has no right to be
represented through counsel or agent unless the law specifically confers such a
right. The requirement of the rule of natural justice insofar as the delinquent's
right of hearing is concerned, cannot and does not extend to a right to be
represented through counsel or agent. In the instant case the delinquent's right
of representation was regulated by the Standing Orders which permitted a clerk
or a workman working with him in the same department to represent him and
this right stood expanded on Sections 21 and 22(ii) permitting representation
through an officer, staff-member or a member of the union, albeit on being
authorised by the State Government. The object and purpose of such provisions
is to ensure that the domestic enquiry is completed with 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
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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.”
19. More recently, in The Rajasthan Marudhara Gramin Bank
(RMGB) & Anr. (supra), the Apex Court held that the delinquent –
employee did not have an absolute right to avail the services of ex-
employee of the bank as his defence representative in the departmental
proceedings. The Court held in paragraphs 7 and 8 as under :
“7. Applying law laid down by this Court in the aforesaid decisions to the
facts of the case on hand, the respondent employee / respondent delinquent has
no absolute right to avail the services by ex-employee of the Bank as his DR in
the departmental proceedings. It is true that Regulation 44 puts specific
restriction on engagement of a legal practitioner and it provides that for the
purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not
engage a legal practitioner without prior permission of the competent authority.
Therefore, even availing the services of legal practitioner is permissible with the
leave of the competent authority. However, Regulation does not specifically
provides that an employee can avail the services of any outsider and / or ex-
employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor
permits availing the services of any outsider and / or ex-employee of the Bank as
DR and to that extent Regulation is silent. If the reasoning of the High Court is
considered, the High Court is of the opinion that as there is no complete or
absolute bar even on engaging a lawyer, it is difficult to accept that a retired
employee of the Bank cannot be engaged to represent a delinquent officer in the
departmental inquiry. However, the High Court has not appreciated the effect of
the Handbook As per Clause 8 of the Handbook Procedure which has been
approved by the Board of Directors and it is applicable to all the employees of
the Bank and Clause 8 is with respect to the defence representative it specifically
provides that DR should be serving official / employee from the Bank. The said
Handbook Procedure which has been approved by the Board of Directors of the
Bank is binding to all the employees of the Bank. Court has considered The High
Regulation 44 of the Regulation, 2010, however has not considered clause 8 of
the Handbook Procedure on the ground that the same cannot be said to be
supplementary. However, we are of the opinion that Handbook Procedure can be
said to be supplementary. The same cannot be said to be in conflict with the
Regulation 44 of Regulation, 2010 As observed herein above, neither Regulation
44 permits nor restricts engagement of an ex-employee of the Bank to be DR.
Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of
Regulation 2010. Provisions of Regulation 2010 and the provisions of Handbook
Procedure are required to be read harmoniously an be achieved the result
without any violation of any of the provisions of Regulation, 2010 and the
Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and
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Clause 8 of the Handbook Procedure seem to be to avoid any outsider including
legal representative and / or even ex-employee of the Bank. At the cost of
repetition, it is observed that there is no absolute right in favour of the
delinquent officer's to be represented in the departmental proceedings throught
he agent of his choice and the same can be restricted by the employer.
8. As per the Bank there is a justification also to permit delinquent officer to
be represented in the the departmental proceedings through serving official
employee from the Bank only. The Bank has justified its action of not permitting
ex-employee of the Bank as DR and according to the Bank, the ex-employee who
themselves may have been subject of a disciplinary enquiry/ chargesheet /
dismissed from service; the ex-employee might be a part of vigilance or audit
sections who come across a lot of information of confidential nature and
therefore, if they are allowed to be DR in the departmental proceedings, which
would result in grave injustice; the solemn nature of proceedings is taken away
and would result in issues of orderliness as well as decorum when a disgruntled
ex-employee is enabled to act as defence representative; they may adopt delay
tactics in departmental enquiry and may not permit completion of department
enquiry within six months as mandated by the CVC Circular and as per Vigilance
Handbook adopted by the Bank. For all the aforesaid reasons not permitting the
delinquent officer to be represented through ex-employee of the Bank in the
departmental enquiry cannot be said to be in any way in breach of principles of
natural justice and / or it violates any of the rights of the delinquent officer. As
per settled proposition of law and as observed herein above, in decisions referred
to herein above, the only requirement is that delinquent officer must be given
fair opportunity to represent his case and that there is no absolute right in his
favour to be represented through the agent of his choice. However, at the same
time, if the charge is severe and complex nature, then request to be represented
through a counsel can be considered keeping in mind Regulation 44 of
Regulation, 2010 and if in a particular case, the same is denied, that can be
ground to challenge the ultimate outcome of the departmental enquiry. However,
as a matter of right in each and every case irrespective of whether charges is
severe and complex nature or not, the employee as a matter of right cannot pray
that he may be permitted to represent through the agent of his choice.”
.
20 In Saran Motors Private Ltd., New Delhi ( supra ), the issue
was slightly different. In that case, the employer had engaged an Inquiry
Officer who was not only an Advocate but was engaged as lawyer by
employer in several industrial matters. It was therefore sought to be
urged that the said Inquiry Officer was not expected to conduct the
inquiry in a fair manner. The Apex Court, however, repelled the objection
and held in paragraphs 5 and 6 as under :
“5. The first question which we have to decide is whether the Tribunal was
justified in holding that Mr Chadha had a bias in favour of the appellant, and so,
was incompetent to hold the enquiry. It appears that Mr Chadha is sometimes
engaged by the appellant as a lawyer in industrial matters and the respondents'
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case was that he had been entrusted with the work of holding such enquiries on
four five occasions. It is on these grounds that the Tribunal has held that Mr
Chadha was not competent to held the present enquiry.
6. In our opinion, this view is completely erroneous and cannot be
sustained. We have repeatedly pointed out that domestic enquiries in industrial
relations must be fairly conducted and whenever we are satisfied that any
enquiry was not fairly conducted or its conclusions were not supported by
evidence, we have unhesitatingly ignored the findings recorded at such an
enquiry and held that the Tribunals must deal with the merits of the dispute for
themselves; but it is impossible to accept the argument that because a person is
sometimes employed by the employer as a lawyer, he becomes incompetent to
hold a domestic enquiry. It is wellknown that enquiries of this type are generally
conducted by the officers of the employer and in the absence of any special
individual as attributable to a particular officer, it has never been held that the
enquiry is bad just because it is conducted by an officer of the employer. If that
be so, it is obviously unsound to take the view that a lawyer who is not a paid
officer of the employer, is incompetent to hold the enquiry, because he is the
employer's lawyer and is paid remuneration for holding the enquiry. Therefore,
the first reason given by the Tribunal for ignoring the findings of the domestic
enquiry must be reversed.”
(emphasis supplied)
.
21 Mr. Lakdawala has made strenuous efforts to contend that the
charges levelled against the Petitioner are of grave and complicated
nature. He has submitted that the Petitioner is accused of carrying
explosives in the company premises and considering his educational
background, it is impossible for the Petitioner to defend himself in respect
of such grave and complicated allegations. Reliance is placed on
Judgment of this Court in Yeshwant Harichandra Gharat (supra) in which
this Court has held in paragraphs 16 and 17 as under :
“16. The same, however, and for that matter even if there were no disputes
between the Petitioner and the union, would make no difference for in this case,
the Presiding Officer is a legally trained person. I referred to the disputes only
to indicate that the Petitioner’s predicament in being adequately represented in
the inquiry is thereby further aggravated.
17. In view of the authorities which I will shortly refer to, it is necessary to
consider whether the Presenting Officer/Management Representative is a legally
trained person. I find that he is. It was further contended by Mr. Rele that even
assuming that the Presenting Officer is a legally trained person, the Petitioner is
not entitled to the assistance of a lawyer as the facts of the case, the charges are
simple and not complicated. I have rejected the contention. Further, I have, in
any event, found that the facts are not simple or uncomplicated. The Petitioner
is, therefore, in any event, entitled to the assistance of a lawyer.”
(emphasis supplied)
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22. In my view, the Judgment of this Court in case of Yeshwant
Harichandra Gharat ( supra ) cannot be cited in support of an absolute
proposition that in every case where the charges are of grave or
complicated nature, delinquent employee would be entitled to be
represented by a lawyer. If such contention is accepted, a workman /
worker charged of committing grave misconduct of assault or bribe would
demand representation through Advocate even though the management
representative is not a legally trained mind. Therefore, nature of charges
would not determine the right of the workman to be represented through
legally trained mind.
.
23 Clause 25 of the Model Standing Orders imposes a restriction
on the right of the workman to choose his defence representative. The
Apex Court has held that the employer has right to impose such
restriction. In my view, the Petitioner must choose his defence
representative through the person recognized as per the provisions of
Clause 25 of the Model Standing Orders. His defence representative needs
to be either a workman working in the same department or an office-
bearer of trade union of which he is a member. Mr. Shishir Dhavale is not
an employee of the Respondent – Company and his nomination has
rightly been refused by the employer.
24. I, therefore find the Order passed by the Industrial Court to
be unexceptionable. Writ Petition being devoid of merits, is dismissed
without any order as to costs. Rule is discharged.
(SANDEEP V. MARNE, J.)
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Digitally signed
by UMESH
RAMESH
SHINDE
Date:
2024.01.09
13:21:19 +0530
UMESH
RAMESH
SHINDE
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