When should disciplinary enquiry be set aside on violation of principles of natural justice?

1) While examining whether procedural requisites have been met, by the authorities below, however, the test of "prejudice" must apply; breach of procedure, which does not result in prejudice, to the officer employee concerned, is not to be treated as fatal. Though, ordinarily, the onus to establish prejudice, is on the officer, or employee so alleging, the writ court may, justifiably, in some circumstances, infer the existence of prejudice - such as inordinate or unconscionable delay in issuance of a charge-sheet, denial of adequate opportunity, to the employee to defend the charges against him, reliance on material undisclosed to the employee, and the like. Whether, in a given case, prejudice has resulted, or not, is not an issue for which straight-jacketed tests are available; ultimately, this is a matter in which the writ court has to exercise its best judgment.

2) The Enquiry Report, dated 16th March, 1999, of the EO, rejected the petitioners request for being provided copies of the above mentioned documents, not on the ground that the documents did not exist, but because "they had no relevance in the present enquiry because the enquiry pertains to a period when the Agency of Shri Yugal Gupta was fully functioning under Shri Midha and there is no base to prove or contest the origin of the agency". To my mind, this finding of the Enquiry Officer, and the decision of the Enquiry Officer to deny, to the petitioner, the documents sought by him, are manifestly violative of the principles of natural justice, and also suffer from perversity. The observation, of the EO, that "the enquiry pertains to a period when the agency of Shri Yugal Gupta was fully functioning under Sh. Midha and there is no base to prove or contest the origin of the agency", in fact, itself negates the allegation, in the charge-sheet, that Yugal Gupta was a dummy agent. In observing thus, the EO impliedly accepts the fact that an agent, by name Yugal Gupta was, in fact, working with the respondent. This observation, in fact, takes the wind away from the sails, as it were, of the most fundamental allegation in the charge-sheet, as levelled against the petitioner. Besides, the observation is clearly perverse, as it fails to notice - intentionally or otherwise - the fact that the charge-sheet against the petitioner was premised on the assumption that Yugal Gupta, into whose account agency commission was paid and, subsequently, misappropriated by the petitioner, was a dummy/fictitious agent. It is impossible to understand, therefore, how the EO held that there was "no base to prove or contest the origin of the agency". The EO had, therefore, either not even understood the Government of the allegations against the petitioner, or was determined not to allow documents to the petitioner, on one ground or the other.

(vi) The inequity inherent in the above approach of the EO is underscored by the fact that as many as ten documents were permitted to be produced by the respondent-Management. The EO, thereby, ensured that the petitioner would not be provided with a level playing field, which is the sine qua non of due process and fair play.

(vii) In the opinion of this Court, ordinarily, documents sought by a charged officer, the providing of which lies within the power of the management/establishment, ought to be provided to him. The EO is not, ordinarily, expected to sit in appeal over the decision of the charged officer, regarding the documents which, according to him, are necessary for his defence. Of course, if it does not lie within the province of the management, to provide the said documents, or if the request for documents is found to be manifestly unreasonable, or a deliberate attempt to protect, or otherwise frustrate, the disciplinary proceedings, the request for providing documents may be denied. In such an event, however, the precise reason for denying the said request would necessarily have to find place in the Enquiry Report. The reasons cited by the EO, in the Enquiry Report, dated 16th March, 1999, in the present case, i.e., that the documents, requested by the petitioner, were not relevant to the enquiry, conveniently omits to notice the fact that the documents were, in fact, extremely necessary, for the petitioner to be able to establish the points raised, by him, in his defence. They cannot, therefore, sustain.

3) In Hardwari Lal v. State of U.P. MANU/SC/0685/1999 : (1999) 8 SCC 582, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box. There is no reason why this principle would not apply, even in a case in which the charged officer is prevented from producing evidence, of witnesses relevant for his defence. The wholesale rejection, by the EO, of the request, of the petitioner, to lead the evidence of the said persons, with no reason, therefor, being forthcoming, has also, therefore, necessarily to be regarded as arbitrary and violative of the principles of natural justice.

4)  There is no explanation therefor. Even more significantly, there is no explanation for why the respondent did not choose to lead the evidence of the said allegedly "fictitious" Yugal Gupta, as a Management Witness. In Hardwari Lal MANU/SC/0685/1999 : (1999) 8 SCC 582, as already noted hereinabove, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box.

5) The onus to establish that the petitioner had committed misconduct was, unquestionably, on the respondent. Absent discharge of such initial onus, the petitioner could not be burdened with the responsibility of defending himself against the allegations. The petitioner was also entitled to be extended all due opportunity, and to the benefit of the principles of natural justice and fair play.

IN THE HIGH COURT OF DELHI

W.P. (C) 7593/2002

Decided On: 29.05.2020

Rakesh Midha  Vs.  Oriental Fire Insurance Co. Ltd.

Hon'ble Judges/Coram:

C. Hari Shankar, J.

Print Page

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, Vs  Punjaram  Dharmaji Wagdarkar,

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

Print Page