1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 121 OF 2008 LETTERS PATENT APPEAL NO. 121 OF 2008 LETTERS PATENT APPEAL NO. 121 OF 2008 IN IN IN WRIT PETITION NO. 1904 OF 2007 WRIT PETITION NO. 1904 OF 2007 WRIT PETITION NO. 1904 OF 2007 1. SMT. SULOCHANADEVI SINGHANIA SCHOOL, Jekegram, Pokhran Road, No. 1, Thane (W). 2. THE PRINCIPAL, SMT. SULOCHANADEVI SINGHANIA SCHOOL, Jekegram, Pokhran Road, No. 1, Thane (W). .. APPELLANTS. (Orig. Respondents) VERSUS PREMSINGH NANDKISHANSINGH PANDEY Sukhshanti Society, Sathe Nagar, Road No. 22, Wagle Estate, District Thane. .. RESPONDENT. (Orig. Petitioner) Mr. V.P. Sawant for the Appellants. Mr. Vaibhav Patankar i/by Y. M. Pendse for Respondent. 2 CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & SMT. V.K. TAHILRAMANI,JJ. SMT. V.K. TAHILRAMANI,JJ. SMT. V.K. TAHILRAMANI,JJ. DATE: 12TH MARCH, 2009. DATE: 12TH MARCH, 2009. DATE: 12TH MARCH, 2009. ORAL JUDGMENT (Per Smt. V.K. Tahilramani, J.) . Heard, admit. Counsel for respondent waives service. The learned counsel for the parties submit that this Letters Patent Appeal be disposed of at this stage itself so also the writ petition filed by Respondent. Heard forthwith. 3. The respondent was employed as a Watchman in the School of the Appellants. He was found sleeping on duty. Hence, show cause notice came to be issued against him and thereafter an enquiry came to be held. In the enquiry the respondent preferred an application to allow him to be represented by an outsider. The said application came to be rejected by the Enquiry Officer. Hence, the respondent filed a complaint of unfair labour practice under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Labour Court by its order dated 24.8.2006 allowed the said application and directed the appellants that the respondent be allowed to appoint defence representative 3 of his choice and then to proceed with the enquiry. 4. Being aggrieved by the said judgment and order, the appellants approached the Industrial Court. The Industrial Court by its order dated 7.12.2006, quashed and set aside the order of the Labour Court and it remitted the matter back to the Labour Court for disposal in accordance with law. Being aggrieved thereby, the respondent preferred Writ Petition No. 1904 of 2007 before this Court. The learned Single Judge by order dated 25.7.2007 granted rule in the said matter and stayed the order of the Industrial Court. The learned Single Judge directed that if the appellants wish to continue the enquiry, they may do so after permitting the petitioner therein to be represented in accordance with Model Standing Order 25 (4). 5. With all humility at our command, we may state that this order virtually disposes of the writ petition. We have perused the Model Standing Order 25 (4) which reads thus :- (4) A workman against whom an inquiry is proposed to be held shall be given a chargesheet clearly setting forth the circumstances appearing against him and requiring his explanation. He shall be permitted to appear himself for defending him 4 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." In the case of Crescent Dyes and Chemicals Ltd., vs. Ram Naresh Tripathi, (1993) 2 SCC 115 in a domestic enquiry the delinquent had requested for being permitted to be represented by office bearer of the union. In the said case it was held that the rejection of request of the delinquent to be represented by an office bearer of the union who was not a clerk or a workman with the delinquent in his department was proper. 6. In the case of National Seeds Corporation Ltd., v. K.V. Rama Reddy, (2006) 11 SCC 645 it was held that the delinquent employee can be represented in a domestic enquiry only if the Rules, Regulations and Standing Orders recognize such a right. 7. The right to be represented through counsel or 5 agent can be restricted, controlled or regulated by statues, 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 rules 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 in 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. When the person defending the delinquent is from the department or establishment in which the delinquent is working he will 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) conflicts with the principles of natural justice. 8. The contention of the respondent is that he is a member of the union and hence he can be represented by a member of the union. However, in view of the 6 abovereferred case law, it is clear that only if the constitution of the union allows the delinquent only then can he engage any such person as appearing in the constitution. We have called for the constitution of the union and we have perused the same. On perusal thereof we have found that at the time when the request was made by the workman, there was no such provision in the constitution and in such case the view taken by the Industrial Court appears to be just and proper. In view of our aforesaid findings and in the facts and circumstances of the case the reliefs claimed in writ petition do not survive. Therefore, the Writ Petition. will also stand disposed of accordingly. 9. We expect that the delinquent will extend all co-operation to ensure that the enquiry is expeditiously completed. 10. The Letters Patent Appeal is allowed in above terms. In view of the disposal of the Letters Patent Appeal, the civil application does not survive. The same stands dismissed as infructuous. (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) (Smt. V.K. Tahilramani, J.) (Smt. V.K. Tahilramani, J.) (Smt. V.K. Tahilramani, J.)