Saturday, 4 June 2016

Whether employee has absolute right of representation in departmental enquiry?

The law in this country does not concede an
absolute   right   of   representation   to   an   employee   in
domestic enquiries as part of his right to be heard and
that there is no right to representation by somebody else
unless the rules or regulation  and  standing orders, if
any, regulating the conduct of disciplinary proceedings
specifically recognize such a right and provide for such
representation   (See   N.   Kalindi   v.   Tata   Locomotive   &
Engg. Co. Ltd. (AIR 1960 SC 914), Dunlop Rubber Co.
(India) Ltd. v. Workmen (AIR 1965 SC 1392), Crescent
Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993
(2)   SCC   115),   and   Indian   Overseas   Bank   v.   Indian

Overseas   Bank   Officers'   Association   and   Another
(2001(9) SCC 540).
8. “27.  The basic principle is that an employee
has   no   right   to   representation   in   the   departmental
proceedings by another person or a lawyer unless the
Service   Rules   specifically   provide   for   the   same.   The
right  to  representation   is  available   only   to   the   extent
specifically provided for in the Rules. For example, Rule
1712 of the Railway Establishment Code provides as
under:
"The accused railway servant may present his
case with the assistance of any other railway
servant   employed   on   the   same   railway
(including   a   railway   servant   on   leave
preparatory   to   retirement)   on   which   he   is
working."
28.    The  right  to  representation,  therefore,  has  been
made   available   in   a   restricted   way   to   a   delinquent
employee.   He   has   a   choice   to   be   represented   by
another railway employee, but the choice is restricted to
the Railway on which he himself is working, that is, if he
is   an   employee   of   the   Western   Railway,   his   choice
would be restricted to the employees working on the
Western Railway. The choice cannot be allowed to travel

to other Railways.
29.   Similarly, a provision has been made in Rule 14(8)
of the Central Civil Services (Classification, Control &
Appeal) Rules 1965, where too, an employee has been
given the choice of being represented in the disciplinary
proceedings through a co­employee.
30.   In N. Kalindi's case (supra) a three­Judge Bench of
this Court observed as under : (SCR pp. 409­10) 
"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 crossexamination
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
cross­examine 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
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.
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 chargesheet
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.
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."
31.   In another decision, namely,  Dunlop Rubber
Company's case (supra), it was laid down that there was
no right to representation in the disciplinary proceedings
by another person unless the Service Rules specifically
provided for the same.
32.  The matter again came to be considered by a
three­Judge   Bench   of   this   Court   in  Crescent   Dyes's
case (supra), Ahmadi, J. (as he then was) in the context
of   Section   22(ii)   of   the   Maharashtra   Recognition   of
Trade Unions and Unfair Labour Practices Act, 1971, as
also   in   the   context   of   domestic   enquiry,   upheld   the
statutory restrictions imposed on delinquent's choice of
representation in the domestic enquiry through an agent.
33. The   earlier   decisions   in  N.   Kalindi's   case
(supra); Dunlop Rubber Company's case (supra) and
Brooke Bond India (P) Ltd. v. Subba Raman (S.)  and
another, (1961 (2) LLJ417), were followed and it was
held that the law in this country does not concede an
absolute right of representation to an employee as part
of his right to be heard.   It was further specified that
there is no right to representation as such unless the
Company, by its Standing Orders, recognises such a

right.     In   this   case,   it   was   also   laid   down   that   a
delinquent employee has no right to be represented in
the departmental proceedings by a lawyer unless the
facts involved in the disciplinary proceedings were of a
complex nature in which case the assistance of a lawyer
could be permitted.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NOS. 107/07 & 115/07.
           LETTERS PATENT APPEAL NO. 107 OF 2007
         IN  WRIT PETITION NO. 2616 OF 1996
P.M. Ruikar Trust Yavatmal,
// VERSUS //
Punjaram s/o Dharmaji Wagdarkar,

   CORAM :  B.R. GAVAI & P.N. DESHMUKH, JJ.     
   DATED  :  JANUARY 11, 2016.
Citation:2016(2) MHLJ783

1] These two appeals are filed by the employer as well as the
employee.   L.P.A. No. 107/07 is filed by the employer Trust being
aggrieved by the judgment and order passed by the learned Single
Judge   dated   21.12.2006   in   Writ   Petition   No.   2616/96,   thereby
allowing   the   appeal   filed   by   the   employee,   setting   aside   the
termination and granting reinstatement with continuity and 25% of the
back wages from the date of his termination.  

2] The employee has filed L.P.A. No. 115/07 being aggrieved
by the denial of 75% of the back wages and also some of the findings
as recorded by the learned Single Judge which according to him, are
against   him.     For   the   convenience,   the   parties   hereinafter   are
referred to as “the employer” and “the employee”.
3] The employee came to be appointed as Headmaster on
9.7.1983.    He  was   confirmed   on  the   said   post  from  1987.     The
appointment of the employee as Headmaster was approved by the
Education Officer.  The School was initially run on no­grants basis.
However, it started getting grants from 1991­1992.   The employer
decided to conduct an enquiry against the employee and as such, by
a resolution passed by the management, his services came to be
suspended from 2.1.1993.   At the conclusion of the departmental
enquiry, vide the order dated 30.5.1993 the services of the employee
were terminated.   Being aggrieved thereby, the employee filed an
appeal before the learned School Tribunal, Amravati being Appeal
No. 97/93.  The appeal was dismissed.  Being aggrieved thereby, a
Writ Petition was filed before the learned Single Judge.  The learned
Single Judge by the impugned order allowed the appeal and passed
an order of reinstatement with continuity and 25% of back wages.

Being aggrieved thereby, the aforesaid two appeals.
4] Shri   U.S.   Dastane,   learned   Counsel   for   the   appellant
employer, submits that the learned Single Judge has erred in holding
that   it   was   necessary   for   the   President   to   have   recorded   his
dissatisfaction with regard to the written explanation submitted by the
employee   and   that   such   non­satisfaction   ought   to   have   been
forwarded to the management.   The learned Counsel further submits
that   the   finding   of   the   learned   Single   Judge   that   since   the
management had already taken a decision on 18.12.1992 to hold the
departmental   enquiry   against   the   employee   and   that   since   the
President was party to the said decision, he had disqualified himself
from participating in the further proceedings, is also not sustainable.
He submits that the learned Single Judge while arriving at the said
finding has failed to take into consideration the provisions of Rule 33
of the said Rules.   The learned Counsel further submits that   the
learned Single Judge has further erred in holding that appointing Shri
Ballal, who was an award winning teacher was not in accordance
with law, since he was not on panel maintained by the Education
Officer.    It is submitted  that  no such panel  is maintained  by the
Education Officer and as such, the requirement is only to have a third

person   on   a   Committee,   who   is   an   award   winner.     The   learned
Counsel further submits that  the learned Single Judge has also erred
in holding that prejudice was caused to the employee, inasmuch as
he was denied a legal assistance.  The learned Counsel submits that
unless there is a provision in the relevant Rules which permits a legal
assistance to be provided, the legal assistance cannot be provided to
an employee in the departmental proceedings.
5] The   learned   Counsel   in   this   respect   relies   on   the
judgments of the Apex Court in the case of N. Kalindi and others
.vs. M/s. Tata Locomotive and Engineering Co. Ltd., Jamshedpur
reported in AIR 1960 SC 914(1), D.G. Railway Protection Force
and others .vs. K. Raghuram Babu reported in (2008) 4 SCC 406
and National Seeds Corporation Limited .vs. K.V. Rama Reddy
reported in (2006) 11 SCC 645.
6] Per contra, Shri R.S. Parsodkar, learned Counsel for the
employee, submits that the learned Single Judge has erred in holding
that no prejudice was caused to the employee by not forwarding him
a copy of the findings on the charges by the Enquiry Committee.

The learned Counsel further submits that  the learned Single Judge
has   also   erred   in   holding   that   no   prejudice   was   caused   to   the
employee even if the findings of all the members of the Enquiry
Committee were not made available to him.  The learned Counsel in
this respect relies on the judgment of the Apex Court in the case of
Vidya Vikas Mandal and another .vs. The Education Officer &
another reported in 2007(2) ALL MR 461.    The learned Counsel
further submits  that   the learned  Single Judge  has also erred in
holding that since the enquiry was vitiated, it was not necessary to go
into the merits of the matter.   The learned Counsel in this respect
relies on the judgment of the Apex Court in the case of  Anant R.
Kulkarni   .vs.   Y.P.   Education   Society   and   others   reported   in
(2013) 6 SCC 515.   
7] The learned Single Judge has found it not necessary to go
into the merits of the allegations, inasmuch as the learned Single
Judge was of the view that the appeal deserves to be allowed on the
ground   of   violations   of  the   Maharashtra   Employees   of   Private
Schools (Conditions of Service) Rules, 1981 (hereinafter referred to
as “the said Rules”).  As such, we also do not find it necessary to go

into the merits of the allegations of misconduct, inasmuch as we are
also of the considered view that the appeal can be decided on the
merits of the interpretation of the provisions of the said Rules, as has
been done by the learned Single Judge.
8] With the assistance of the learned Counsel for the parties,
we have examined the material on record.   The undisputed factual
position is thus :­
That  on   the  basis   of  the   allegations   made  against   the
petitioner/employee, the management of the employer had held a
meeting on 18.12.1992 and in that meeting the report given by the
Chief Executive Officer was considered and it was resolved that since
prima facie the petitioner had committed misconduct punishable with
severe punishment, an enquiry should be conducted against him and
it   was   also   resolved   to   suspend   him   with   effect   from   2.1.1993.
Accordingly,   on   29.1.1993   a   communication   was   sent   to   the
employee along with draft charges for indiscipline and misconduct in
respect of which enquiry was decided to be conducted.  Not only that,
said communication also includes the Statement of Allegations as
well as List of Documents relied upon and the List of Witnesses,
through whom the charges were to be proved.  Employee was given

seven  days' time to file his reply in defence and it was also specified
that   the   enquiry   would   be   restricted   only   to   the   charges   not
acceptable to him.  It was further informed to him that if no reply in
writing was received, ex­parte enquiry would begin.  Undisputedly, in
response to the communication dated 29.1.1993, an explanation was
submitted   by the  employee.    In  the  meeting  of  the  management
dated 18.2.1993 a resolution was passed by the management to the
effect that the explanation of the employee was considered suitably
and it was decided to appoint Enquiry Committee as per Rule 36 of
the Rules.  The Resolution further states that the Enquiry Committee
was   also   to   consist   of   Shri   Suresh   Shankarrao   Ballal,   the
Headmaster   of   Samarth   High   School   as   a   member,   on   whom
State/National award has been conferred.  The employee named one
Shri Pandurang Krishnarao Tonge as the nominee of the employee.
Since it was an enquiry in case of a head, a third member is required
to  be   the  President   of  the   management.    It   further   appears   that
thereafter an application was made by the employee to permit him to
engage the services of a lawyer to assist him.  The said application
was rejected on 30.3.1993.  Thereafter, additional charge­sheet was
also served upon the employee on 9.3.1993 in view of the resolution
of the management dated 8.3.1993.  The employee replied to it on

15.3.1993.  The explanation submitted by the employee was received
by President on 20.3.1993 and it was considered by the Managing
Committee on 21.3.1993 in which the management found the reply to
be   not   satisfactory   and   hence,   decided   to   forward   the   same   to
Enquiry Committee already constituted.   Thereafter it appears that
the enquiry proceeded in absence of the employee, as he chose not
to appear.  The   Enquiry  Committee   submitted  its  summary   of the
proceedings as required under sub­rule (4) of Rule 37, which were
sent to the employee on 10.5.1993 and which were received by him
on 14.5.1993.   Employee submitted his explanation on 18.5.1993 as
required under sub­rule (5) of the said Rules.  Upon completion of the
enquiry,   the   Convenor   communicated   the   findings   of   the   Enquiry
Committee   to  the   management   on   26.5.1993.    The   management
passed a Resolution to terminate the services of the petitioner on
29.5.1993 and accordingly, the termination order was issued by the
President of the management on 30.5.1993 which was served on the
employee on 31.5.1993.   
9] The learned Single Judge has reproduced the provisions
of Rules 36 & 37 of the Rules in entirety.  The decision in the present
case will have to be on the basis of the interpretation of the Rules.

The learned Single Judge has also reproduced the law as laid down
by the Apex Court in the case of  State Bank of Patiala .vs. S.K.
Sharma   reported   in   AIR   1996   SC   1669,   which   elaborately
considers the legal position with regard to the departmental enquiry.
Their Lordships of the Apex Court in the said case have held that the
Regulations which are of substantive nature have to be complied with
and in case of said provisions the theory of substantial compliance
would not be available.   Their Lordships have further held that the
provisions   which   are   of   fundamental   nature   are   required   to   be
complied with and in such cases the theory of substantial compliance
would not be available.  Further, it has been held that in respect of
procedural provisions other than of fundamental nature, the theory of
substantial   compliance would be available and in such cases, the
test of prejudice would be a relevant test.  
10] The   learned   Single   Judge   in   paragraph   no.13   has
observed that the management had already resolved on 18.12.1992
itself, to hold departmental enquiry against the petitioner in which
meeting   the   President   was   also   present   and,   therefore,   had
disqualified himself to perform the duty under Rule 36.   It appears

that the provisions of Rule 33 were not brought to the notice of the
learned Single Judge by either of the parties.  It will be relevant to
refer to sub­rule (1) of Rule 33 of the said Rules, which reads thus :­
“33. Procedure for inflicting major penalties :­
(1) If an employee is alleged to be guilty of any of the
grounds specified in sub­rule (5) of rule 28 and if thee
is reason to believe that in the event of the guilt being
proved against him, he is likely to be reduced in rank
or removed from service, the Management shall first
decide whether to hold an inquiry and also to place
the employees under suspension and if it decided to
suspend the employee, it shall authorise the Chief
Executive   Officer   to   do   so   after   obtaining   the
permission of the Education Officer or, in the case of
the Junior College of Educational and Technical High
Schools, of the Deputy Director.   Suspension shall
not be ordered unless there is a prima facie case for
his   removal   or   there   is   reason   to   believe   that   his
continuance   in   active   service   is   likely   to   cause

embarrassment or to hamper the investigation of the
case.   If the Management decides to suspend the
employee,   such   employee   shall,   subject   to   the
provisions of sub­rule (5) stand suspended with effect
from the date of such orders.
(2) …...................”
It could thus clearly be seen that if an employee is alleged to be guilty
and if there are reasons to believe that in the event of guilt being
proved against him, he is likely to be reduced in rank or removed
from service, the management is required to decide whether it will
hold an enquiry and is also required to decide as to whether it will
place the employee under suspension.   Only after the management
takes such decision to suspend the employee, it can authorize the
Chief Executive Officer to do so, after obtaining permission of the
Education Officer.  It can thus clearly be seen that before deciding to
hold   a   departmental   enquiry   against   an   employee   and   before
deciding   to   put   him   under   suspension,   the   management   is   first
required   to   take   a   decision   in   that   regard.     The   decision   of   the
management dated 18.12.1992 is taken in view of the provisions of
sub­rule (1) of Rule 33 of the said Rules.  When a law itself requires

the management to first take a decision as to whether it decides to
hold an enquiry against an employee when there are reasons to
believe that in the event of guilt being proved against him, he is likely
to be reduced in rank or removed from service, the management is
bound to follow the said provision.   In that view of the matter, we find
that the finding recorded by the learned Single Judge to the effect
that since the management had taken a decision on 18.12.1992 to
hold   departmental   enquiry   against   the   employee   and   since   the
President was party to that decision, he had disqualified himself to
perform the duty under Rule 36(1), would not be sustainable in law.   
11] The next ground on which the learned Single Judge has
found the departmental enquiry to be vitiated is that the President of
the   management   had   not   recorded   his   dissatisfaction   to   the
explanation of the employee dated 19.1.1993 and also not forwarded
his dissatisfaction to the management and as such, there is noncompliance
with the provisions of Rule 36(2) of the said Rules.
12] The perusal of sub­rule (2) of Rule 36 would reveal that
after the explanation is received from an employee or a head under
sub­rule (1)  of Rule 36 and  if the Chief Executive  Officer or the

President   as   the   case   may   be   finds   such   explanation   not   to   be
satisfactory, he is required to place the same before the management
within 15 days from the date of receipt of explanation.  In the present
case, undisputedly, prior to calling the explanation of the employee,
the President had while communicating the decision to hold enquiry
against employee, not only forwarded draft charge­sheet but also
statement of allegations, the material sought to be used against him
in respect   of each  of the  allegations  and  also the  names  of  the
witnesses proposed to be examined.     An explanation to the said
communication dated 29.1.1993 was given on 9.2.1993.  After receipt
of such explanation, if the President finds that the explanation of the
employee is not satisfactory, the only thing that he is required in law,
is to place it before the management within 15 days from the date of
receipt of explanation.    Thereafter, the management is required to
decide within 15 days whether an enquiry is to be conducted against
an employee and only after such a decision is taken, the further
proceedings of the enquiry would commence.  It could thus be seen
that if the explanation of the employee is not found to be satisfactory,
the only requirement which the President or Chief Executive Officer is
required to comply is to place the same before the management
within 15 days.   If the view of the learned Single Judge is to be

accepted, the rule has to be read by adding certain provisions in the
said rule.  We find that if the interpretation as placed by the learned
Single Judge is to be accepted, sub­rule (2) will have to be read by
adding the words which are emboldened to the said provision, which
read as under :­ 
“36(2).   If the Chief Executive Officer or the President, as
the case may be, finds that the explanation submitted by
the employee or the Head referred to in sub­rule (1) is not
satisfactory,  the   President   or   the   Chief   Executive
Officer shall record his reasons for dissatisfaction in
writing   and   he   shall   place   the   explanation   and   his
reasons   for   dissatisfaction  before   the   Management
within   fifteen   days   from   the   date   of   receipt   of   the
explanation.  ….............................................” 
We are  of the considered  view that  while interpreting  a statutory
provision, it will not be permissible for the Court to add the words to
the provision.   It is also not a case that the rule is ambiguous in
nature and so as to save it, it is necessary to read down the same.
The test of prejudice applied by the learned Single Judge with regard
to the said Rules also, in our view, is not correct.  The President is
not required to communicate the reasons for his dissatisfaction to the

employee,   against   which   an   employee   has   a   right   to   make   a
representation   to   management   or   so.       Upon   plain   and   literal
interpretation of the Rules, the only thing that the President or the
Chief Executive Officer is required to do after he finds the explanation
of the employee to be not satisfactory, is to place the same before
the management.  In that view of the matter, we find that the finding
given by the learned Single judge in that regard is also not tenable.
13] The third reasoning given by the learned Single Judge is
that the member chosen by the President, i.e. Shri Ballal, though was
a person on whom State and National award had been conferred, he
was not from the panel of award winning teachers.   There is no
provision   in   the   Rules   which   requires   the   Education   Officer   to
maintain   any   penal   of   award   winning   teachers.     Shri   Parsodkar,
learned Counsel appearing for employee, also fairly concedes that no
such panel is maintained by the Education Officer.  Undisputedly, the
said Shri Ballal was a teacher/Headmaster  on whom State/National
award was conferred.   In that view of the matter, we find that the
reasoning given by the learned Single Judge to the effect that the
enquiry stood vitiated, since Shri Ballal was not from a panel of award
winning   teachers,   though   was   a   person   on   whom   State/National

award was conferred would not be sustainable.
14] That leaves us with the finding of the learned Single Judge
with regard to prejudice being caused to the employee on account of
denial of an opportunity to engage services of lawyer.   The learned
Single Judge in this regard has held that the President was himself a
lawyer and that Presenting Officer was also holding a law degree and
as such, it was necessary for the Committee to have allowed the
employee to engage the services of a lawyer.    Though Shri Dastane
has relied on various judgments, we will refer to the judgment of Their
Lordships in the case of  National Seeds Corporation Limited .vs.
K.V. Rama Reddy reported in (2006) 11 SCC 645 (cited supra),
wherein Their Lordships had an occasion to consider the issue with
regard to engagement of a legal practitioner.  Their Lordships were
considering Rule 37(7) of the National Seeds Corporation (Conduct,
Discipline and Appeal) Rules, 1992.  It will be relevant to reproduce
the following observations of the Apex Court, wherein Their Lordships
have also considered the earlier judgments on the issue :­
“6. The rival submissions have to be tested in the
background of Rule 31(7) of the Rules. The same reads

as follows:
"Rule   31(7)   ­   The   employee   may   take   the
assistance of any other employee working in the
particular   unit   where   the   employee   is
working/was working at the time of happenings
of alleged charges to which the inquiry relates or
where the inquiry is being conducted to present
the case on his behalf but may not engage a
legal   practitioner   for   the   purpose   unless   the
presenting officer appointed by the disciplinary
authority is a legal practitioner or the disciplinary
authority having regard to the circumstances of
the case, so permits."
7. The law in this country does not concede an
absolute   right   of   representation   to   an   employee   in
domestic enquiries as part of his right to be heard and
that there is no right to representation by somebody else
unless the rules or regulation  and  standing orders, if
any, regulating the conduct of disciplinary proceedings
specifically recognize such a right and provide for such
representation   (See   N.   Kalindi   v.   Tata   Locomotive   &
Engg. Co. Ltd. (AIR 1960 SC 914), Dunlop Rubber Co.
(India) Ltd. v. Workmen (AIR 1965 SC 1392), Crescent
Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993
(2)   SCC   115),   and   Indian   Overseas   Bank   v.   Indian

Overseas   Bank   Officers'   Association   and   Another
(2001(9) SCC 540).
8. “27.  The basic principle is that an employee
has   no   right   to   representation   in   the   departmental
proceedings by another person or a lawyer unless the
Service   Rules   specifically   provide   for   the   same.   The
right  to  representation   is  available   only   to   the   extent
specifically provided for in the Rules. For example, Rule
1712 of the Railway Establishment Code provides as
under:
"The accused railway servant may present his
case with the assistance of any other railway
servant   employed   on   the   same   railway
(including   a   railway   servant   on   leave
preparatory   to   retirement)   on   which   he   is
working."
28.    The  right  to  representation,  therefore,  has  been
made   available   in   a   restricted   way   to   a   delinquent
employee.   He   has   a   choice   to   be   represented   by
another railway employee, but the choice is restricted to
the Railway on which he himself is working, that is, if he
is   an   employee   of   the   Western   Railway,   his   choice
would be restricted to the employees working on the
Western Railway. The choice cannot be allowed to travel

to other Railways.
29.   Similarly, a provision has been made in Rule 14(8)
of the Central Civil Services (Classification, Control &
Appeal) Rules 1965, where too, an employee has been
given the choice of being represented in the disciplinary
proceedings through a co­employee.
30.   In N. Kalindi's case (supra) a three­Judge Bench of
this Court observed as under : (SCR pp. 409­10) 
"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 crossexamination
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
cross­examine 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
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.
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 chargesheet
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.
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."
31.   In another decision, namely,  Dunlop Rubber
Company's case (supra), it was laid down that there was
no right to representation in the disciplinary proceedings
by another person unless the Service Rules specifically
provided for the same.
32.  The matter again came to be considered by a
three­Judge   Bench   of   this   Court   in  Crescent   Dyes's
case (supra), Ahmadi, J. (as he then was) in the context
of   Section   22(ii)   of   the   Maharashtra   Recognition   of
Trade Unions and Unfair Labour Practices Act, 1971, as
also   in   the   context   of   domestic   enquiry,   upheld   the
statutory restrictions imposed on delinquent's choice of
representation in the domestic enquiry through an agent.
33. The   earlier   decisions   in  N.   Kalindi's   case
(supra); Dunlop Rubber Company's case (supra) and
Brooke Bond India (P) Ltd. v. Subba Raman (S.)  and
another, (1961 (2) LLJ417), were followed and it was
held that the law in this country does not concede an
absolute right of representation to an employee as part
of his right to be heard.   It was further specified that
there is no right to representation as such unless the
Company, by its Standing Orders, recognises such a

right.     In   this   case,   it   was   also   laid   down   that   a
delinquent employee has no right to be represented in
the departmental proceedings by a lawyer unless the
facts involved in the disciplinary proceedings were of a
complex nature in which case the assistance of a lawyer
could be permitted.
34. We have seriously perused the judgment of
the High Court which, curiously, has treated the decision
of   this   Court   in  Crescent   Dyes's   case  (supra)   as   a
decision in favour of the respondent No.1.  The process
of reasoning by which this decision has been held to be
in   favour   of   respondent   No.1   for   coming   to   the
conclusion that he had a right to be represented by a
person who, though an office­bearer of the Trade Union,
was   not   an   employee   of   the   appellant   is   absolutely
incorrect and we are not prepared to subscribe to this
view.   Consequently,   we   are   of   the   opinion   that   the
judgment   passed   by   the   High   Court   in   so   far   as   it
purports to quash the order of the Appellate Authority, by
which the Draft Standing Orders were certified, cannot
be sustained.”
The   position   as   afore­noted   was   reiterated   in  Bharat
Petroleum   Corporation   Ltd.   v.   Maharashtra   General
Kamgar Union & Ors. (JT 1998 (8) SC 487).

9. Though it is correct, as submitted by learned
counsel for the respondent, that even if the presenting
officer is not a legal practitioner, the disciplinary authority
having  regard  to  the  circumstances  of  the  case   may
permit engagement of a legal practitioner. But it would
depend upon the factual scenario.
10. Learned   counsel   for   the   appellantCorporation
  has   brought   to   our   notice   office
memorandum dated 21.11.2003 by which the prayer to
engage a legal practitioner to act as a defence assistant
was rejected.  Reference was made to the rules, though
no specific reference has been made to the discretion
available to be exercised in particular circumstances of a
case.  The same has to be noted in the background of
the basis of prayer made for the purpose. The reasons
indicated by appellant for the purpose are (a) amount
alleged to have been misappropriated is Rs.63.67 lakhs
(b) number of documents and number of witnesses are
relied   on   by   the   respondent,   and   (c)   the   prayer   for
availing   services   of   the   retired   employee   has   been
rejected   and   the   respondent   is   unable   to   get   any
assistance  to   get  any  other  able  co­worker.  None   of
these   factors   are   really   relevant   for   the   purpose   of
deciding   us   as   to   whether   he   should   be   granted
permission to engage the legal  practitioner. As noted
earlier,   he   had   to   explain   the   factual   position   with

reference to the documents sought to be utilized against
him. A legal practitioner would not be in a position to
assist the respondent  in this regard.  It has not been
shown as to how a legal practitioner would be in a better
position   to   assist   the   respondent   so   far   as   the
documents in question are concerned. As a matter of
fact, he would be in a better  position to explain  and
throw light on the question of acceptability or otherwise
and the relevance of the documents in question. The
High Court has not considered these aspects and has
been   swayed   by   the   fact   that   the   respondent   was
physically handicapped person and the amount involved
is   very   huge.   As   option   to   be   assisted   by   another
employee is given to the respondent, he was in no way
prejudiced   by  the   refusal   to  permit  engagement  of   a
legal practitioner. The High Court's order is, therefore,
unsustainable and is set aside.”
It could thus be seen that in the said case the Rules itself permitted a
legal practitioner to be engaged when the Disciplinary Authority was
a legal practitioner or the circumstances of the case so permitted.  As
such,   the   High   Court   had   held   that   it   was   necessary   to   provide
assistance   to   the   employee   by   engaging   a   legal   practitioner.
However, in spite of the Rules permitting, Their Lordships of the Apex
Court found that the judgment of the High Court was not sustainable.

In the present case, the Rules do not provide the services of the legal
practitioner to be engaged.   We, therefore, find that in the absence
of there being any provision in the Rules permitting the services of a
legal practitioner to be engaged, the finding of the learned Single
Judge could not be sustainable.
15] In that view of the matter, we find that the findings as
recorded  by the learned Single Judge  with regard to the enquiry
being vitiated on the four grounds would not be sustainable.
16] That leaves us with the appeal  of the employee.   The
learned Single Judge has come to a finding that though the findings
of the Enquiry Committee as required under sub­rule (6) of Rule 37
are   not   communicated   to   the   employee,   no   prejudice   would   be
caused to the employee, inasmuch as the findings of the Enquiry
Committee   are  binding  upon   the  management  and  they  have  no
option but to implement the same.   It is the specific case of the
employee that the enquiry report was only signed by two members
and not by all the three members.   In any case, the Hon'ble Apex
Court in the case of   Vidya Vikas Mandal and another .vs. The

Education Officer  & another  reported in 2007(2) ALL MR 461
(cited supra) upon interpretation of the Rules has held thus :­ 
“............In our opinion, the report submitted by individual
members is also not in accordance with the Rules.  When
the Committee of three members are appointed to inquire
into a particular matter, all the three should submit their
combined report whether consenting or otherwise...........”
It could thus be seen that Their Lordships of the Apex Court have
held that the report to be valid has to be signed by all the three
members.  Undisputedly, in the present case, the report is not signed
by the three members.  We, therefore, find that the report would be
vitiated only on this ground and it will not be necessary for us to go
into the correctness or otherwise of the view taken by the learned
Single Judge that non­forwarding of the findings under sub­rule (6) of
Rule 37 caused prejudice or not.
17] In normal course, on account of the enquiry proceedings
being vitiated on non­compliance of procedural aspects, the matter
would have been required to be remitted to the Enquiry Committee.

However, the employee has retired long back in 2008.  We find that
remanding enquiry proceedings at this stage would not be in the
interest of justice.  Though the learned Single Judge has refused to
go into the merits of the matter but has in detail reproduced the
charges which are levelled against the employee.   Perusal of the
charges   would   reveal   that   there   is   not   a   single   charge   of
misappropriation or embezzlement or a charge which may cause a
doubt upon the integrity of the appellant or a charge which may be
said to have been concerning moral turpitude.   In that view of the
matter, we find that remitting the matter for fresh enquiry at this stage
would   be   dragging   the   employee   to   further   sufferance.     He   has
already suffered a lot being out of employment for a considerable
period.  The learned Single Judge while granting him continuity and
reinstatement has restricted the claim of back wages only to 25%.
The learned Single Judge has given sound and cogent reasons in
paragraph 17 while restricting the claim of back wages only to 25%.
We, therefore, find that it will be in the interest of justice to maintain
the   order   of   the   learned   Single   Judge   in   so   far   as   it   grants
reinstatement with continuity but restricts the claim of back wages to
25%.   We are fortified in the view that we are taking in view of

judgment of Apex Court in the case of  Anant R. Kulkarni .vs. Y.P.
Education   Society   and   others   reported   in   (2013)   6   SCC   515
(cited supra).
18] In the result, though we find that the grounds as raised in
the appeal of the employee are well­merited, however, since we find
that on account of the grounds raised in the appeal of the employee,
the operative part of the order of the learned Single Judge warrants
no interference.   The appeals filed by the employer as well as the
employee are dismissed.  There will be no order as to costs.
19] Needless to state that the amount which was deposited in
this   Court   by   the   employer   is   permitted   to   be   withdrawn   by   the
employee.  The balance back wages as per the order passed by the
learned Single Judge shall be paid by the employer within a period of
three months from today.  Needless to state that as a corollary to the
order  passed  by the learned Single Judge, the employee  who is
already terminated is entitled to all the terminal as well as retiral
benefits, so also the pensionary benefits.

Print Page

No comments:

Post a Comment