1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 623 OF 2010 Yeshwant Harichandra Gharat ) A/16, Radhakrishna Complex ) Sevadal Ali, Roha, Raigad, ) Maharashtra. ) ....Petitioner V/s. 1. M/s. Clairant Chemicals (I) Ltd., ) (Earlier known as M/s. Colour Chem Ltd.)) having its Registered Office at : ) 194, Churchgate Reclamation, ) Mumbai 400020. ) 2. Shri J.Y. Mankame, ) General Manager (Personnel and Indus ) Relations), Thane Works, Balkum ) Village, P.O.Box No.22, Thane-400608. ) ....Respondents Ms. Jane Cox for the Petitioner. Mr. P.K. Rele, senior counsel i/b Rahul Oak for the Respondents. CORAM : S.J. VAZIFDAR, J. DATED : 25TH FEBRUARY, 2010. ORAL JUDGMENT. :- 1. The Petitioner has challenged the order of the Industrial 2 Court rejecting the Revision Application filed by him against the order of the Labour Court in Complaint (ULP) No.27 of 2009 rejecting his application for interim reliefs. In the Complaint, the Petitioner had sought various reliefs. Ms. Jane Cox, the learned counsel appearing on behalf of the Petitioner, however, restricted the Petitioner’s case to allowing him to be represented by a legal practitioner or one Arjun Singh Rajput, a workman. In the Complaint, the Petitioner filed an application for interim reliefs under section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) to restrain the Respondents, inter alia, from proceeding with the enquiry against him, without providing him the assistance of a legal practitioner or the said workman. The Labour Court rejected this interim application. The Petitioner filed the said Revision Application against this order, which was rejected by the impugned order. 2. The Petitioner is an employee of Respondent No.1 Respondent No.2 is the Enquiry Officer appointed in respect of a disciplinary enquiry against the Petitioner. 3. The few factual aspects which require appreciation in turn lead to a question of law of some importance. The question of law that 3 falls for consideration is whether a workman is entitled to the assistance of a lawyer when the Presenting Officer/Management Representative is a legally trained person if the facts are simple and not complicated. I have come to the conclusion that the Presenting Officer is a legally trained person and that the facts are not simple. I have answered the question of law in the affirmative. The Petitioner has, therefore, succeeded in his application for the assistance of a legal practitioner. 4. The Petitioner has been employed by the Respondent since 3rd February, 1979. He was initially appointed as an operator-cum- mechanic and thereafter, in the fire fighting department. The Respondent issued a show-cause notice dated 3rd July, 2009 to the Petitioner alleging that on 16th June, 2009 he had misbehaved and threatened an officer of the company. The Petitioner, by a letter dated 3rd July, 2009, requested the Respondent for time upto 13th July, 2009 to furnish his explanation to the show-cause notice. The Respondent, however, served a charge-sheet dated 8th July, 2009, levelling serious charges against the Petitioner of indecent behaviour on the premises of the establishment and commission of acts subversive of discipline or good behaviour on the premises of the establishment. It is pertinent to note that in the charge-sheet, the Respondent stated that five days had passed since it had issued the show-cause notice which, according to the 4 Respondent, was ample time for the Petitioner to conduct meetings, discussions and deliberate on the issue. The Petitioner’s request for time upto 13th July, 2009, was, therefore, rejected. 5(a). The Petitioner, by his letter dated 9th July, 2009, denied the charges and requested fifteen days’ time to reply to the show-cause notice and the charge-sheet. (b) The Petitioner addressed a letter dated 19th August, 2009 to the Enquiry Officer stating that not only was he highly qualified in the legal field but that the Management Representative one N.M. Date was also highly qualified in the legal field. The Petitioner, therefore, requested that he be permitted to appoint an advocate or such other competitive person as his defence representative in the enquiry. By another letter also dated 19th August, 2009, addressed to the Enquiry Officer, the Petitioner stated that he was appointing the said Arjun Singh Rajput as his defence representative. The said Rajput was then working at the Respondent’s Plant at Thane. 6. The Enquiry Officer considered the Petitioner’s application for permission to appoint a lawyer or such other qualified person as his defence representative. He stated that the Petitioner may be permitted 5 the assistance of a co-worker or an office bearer of the union to which he belongs, as his defence representative. The Enquiry Officer rejected the Petitioner’s request. 7. The Petitioner, thereafter and obviously in the alternative, requested permission to take the assistance of the said Rajput as his defence representative. This application was also opposed by the Management representative and was rejected. 8. Rule 25(4) of the Industrial Employer (Standing Orders) Act, 1946, which is applicable in the present case, reads as under :- “25(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 an 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.” 9. The correspondence indicates serious differences between the Petitioner and the office bearers of the union of which he is a 6 member. It is neither possible nor necessary to consider which of the parties was in the wrong. The significance of the correspondence is that it discloses serious disputes, rendering it impossible for the Petitioner to avail of the assistance of any office bearer of the union. This is clear from the following correspondence. 10(a). The Petitioner had relied upon a letter dated 12th May, 2007, allegedly addressed by the General Secretary of the union to the Company stating that its supervisor abused the Petitioner who complained about the same to the union in writing. The letter records that on 12th May, 2007, the union committee members called the Petitioner and the supervisor and even at that meeting, the supervisor misbehaved. The union, accordingly, lodged a protest in this regard. (b)(i) The Company, by a letter dated 30th September, 2009, addressed to the General Secretary of the union stated that it had never received the letter dated 12th May, 2007 and called upon the union to produce proof of the delivery thereof to the company. (b)(ii) The General Secretary of the union, by an endorsement dated 6th October, 2009, at the foot of the letter stated that the letter dated 12th May, 2007 was, in fact, not given by anyone in the union. 7 (c) This has raised a serious dispute between the Petitioner and the union – the Petitioner alleging that the letter dated 12th May, 2007, is genuine and the union alleging, in effect, that it was fabricated. 11(a) The Petitioner also relied upon the minutes of meetings held on 4th July, 2009 and 17th July, 2009. The union recorded that on 4th July, 2009, it’s representative had telephoned the Enquiry Officer with a view to settle the Petitioner’s case and that the Enquiry Officer had agreed to try and settle the matter. (b) The minutes of 17th July, 2009 record that the Enquiry Officer was unhappy with the answers given by the Petitioner and gave a proposal to the committee to settle the matter, but avoided answering what punishment would be given to the Petitioner. The minutes further record that at a function held later that day, the Petitioner’s matter was once again discussed whereat the Enquiry Officer stated that if the Petitioner apologized in writing, he would merely issue a Memo and a warning letter and that if he did not do so, he would be dismissed. (c) The above minutes were forwarded to the Petitioner under cover of a letter dated 31st August, 2009, addressed by the General 8 Secretary of the union. (d) The Petitioner referred to the said minutes in the enquiry. Thereupon, the Enquiry Officer addressed a detailed letter dated 9th September, 2009, denying the contents of the said minutes. (e) The General Secretary of the union, in turn, by a letter dated 9th September, 2009, addressed to the Respondent’s General Manager stated that the union had adopted a wrong procedure as the matter could not have been discussed with the Enquiry Officer. 12. The letter dated 9th September, 2009, by itself would not indicate any animosity between the Petitioner and the union for the union has not, on it’s part, denied the contents of what transpired at the meetings. It is, however, highly probable that the General Secretary of the union may be summoned to confirm the contents of the minutes. It may be difficult for the Petitioner even for this reason to avail of the assistance of the union if he desires to examine the union or even refer to and rely upon the said minutes. The difficulty is enhanced by the obvious animosity between the Petitioner and the union. 13(a). The doubt in this regard, if any, is set at rest by the 9 Petitioner’s letter dated 27th October, 2009, addressed to the General Secretary of the union making various allegations against the office bearers stating that they had colluded with the Management. The Petitioner raised a grievance regarding the stand of the union as regards both, the letters and the minutes. The Petitioner also alleged collusion between the Respondent on the one hand and the President and the General Secretary of the union, on the other. (b). At the foot of the letter dated 27th October, 2009, the union stated that the contents thereof were not acceptable and that the charges against the office bearers were baseless. 14. In view of the above disputes between the Petitioner and the union, it is impossible to expect the Petitioner to avail of the assistance of any member, leave alone an office bearer of the union in the present enquiry. 15. Mr. Rele, the learned Senior Counsel appearing on behalf of the Company submitted that this still leaves the Petitioner the options under Rule 25(4) to defend himself or to take the assistance of a workman working in the same department as himself. 10 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 Presenting 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. 18. The Central Board for Workers Education has issued the Petitioner a certificate for having completed a three-month course “for Worker Teacher in this course”. The certificate states that in this course, labour problems, industrial relations, productivity and trade 11 union related subjects are discussed. The Petitioner has been declared as a worker-teacher having passed the examination. This certificate, by no stretch of imagination, establishes that the Petitioner is in a position to conduct the proceedings. 19. The Management Representative, on the other hand, holds the qualification of B.Com. and a Diploma in Personnel Management. The diploma in personnel management includes the study of industrial and labour law. The Petitioner, by the said letter dated 19th August, 2009, addressed to the Enquiry Officer, stated that the Enquiry Officer was highly qualified in the legal field and that the Management Representative was also highly qualified in the legal field. This was not denied either in any reply to the letter or even before me. In paragraph 3(i) of the Complaint, the Petitioner stated that the Enquiry Officer and the Management representative were legally qualified persons. The Petitioner stated that the Management representative had a B.Com. degree and a diploma in personnel management and was a legally trained and experienced person, whereas he had no experience of conducting an enquiry, cross-examining 12 witnesses or leading evidence in his defence. Paragraph 18 of the reply contained but a bare denial to the Petitioner’s assertion that the Enquiry Officer and the Management representative were legally qualified and experienced persons. The fact that they were qualified as alleged by the Petitioner, however, was not denied. That the Petitioner also alleged bias against the Enquiry Officer is another matter and is kept open in the departmental proceedings and any action that may be adopted pursuant thereto. The question of bias qua the Enquiry Officer/Respondent No.2 was not pressed at this stage. 20. In view of the above material, it must be held that the Management representative is a legally trained person. I will deal with the second aspect viz. whether the facts and issues involved in the departmental enquiry are complicated, after dealing with the question of law. 21. Ms. Cox relied upon the judgment of the Supreme Court in Board of Trustees of The Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni & ors.; (1983 ) 1 SCC 124 in support of her submission that when the presenting officer/management representative 13 is a legally trained person, the employee ought to be permitted the assistance of a lawyer. In that case, the employee’s request seeking permission to engage a legal practitioner for his defence was rejected. The appellant, however, appointed its legal advisor and a junior assistant legal advisor as presenting officers before the Enquiry Officer. The enquiry commenced on 13th April, 1976. Thereafter, on 8th May, 1976, the Bombay Port Trust Employees Regulations, 1976, came into force. Regulation 12(8) provided that an employee may take the assistance of certain categories of persons, but specifically provided that the employees may not engage a legal practitioner 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. Even after the regulation came into force, neither the Enquiry Officer nor the appellant’s Chairman reviewed the earlier decision rejecting the employee’s request to appear through a legal practitioner before the regulations came into force. Paragraphs 7, 10, 11 and 12 of the judgment read as under :- “7. The narrow question which we propose to examine in this appeal is whether where in a disciplinary enquiry by a domestic tribunal, the employer complaining misconduct appoints a legally trained person as Presenting-cum-Prosecuting Officer the denial or refusal of a request by the delinquent employee seeking permission to engage a legal practitioner to defend him at 14 the enquiry, would constitute such denial of reasonable opportunity to defend oneself and thus violate one of the essential principles of natural justice which would vitiate the enquiry. ........ 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 would generally treated as a managerial function and the Enquiry Officer is more often a man of the establishment. Ordinarily he combines the role of the 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 enquiry 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 advisors – lawyers in the garb of employees – and they are appointed Presenting-cum-Prosecuting Officers and a 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 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 15 Officer combines the judge and prosecutor role into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and titled 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 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 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. [emphasis supplied] 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 1 st 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 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 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 this 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 1 st respondent to appear through a legal practitioner. 16 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 1 st 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. Moreso 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 the essential principles of natural justice, namely, that a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself. [emphasis supplied] 12. Are we charting a new course ? The answer is obviously in the negative. In C.L. Subramaniam v. Collector of Customs, Cochin, a government employee requested the Enquiry Officer to permit him to appear through a legal practitioner and even though a trained Public Prosecutor was appointed as Presenting Officer, this request was turned down. When the matter reached this Court, it was held that the enquiry was in breach of the principles of natural justice. The order of the domestic tribunal was sought to be sustained on the submission that sub-rule (5) of rule 15 of the Central Civil Services 17 (Classification, Control and Appeal) Rules, 1957 that “the government servant may present his case with the assistance of any government servant approved by the Disciplinary Authority but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits”. The submission was that it is a matter within the discretion of the Enquiry Officer whether to grant permission and moreso because the relevant rule fetters the claim to appear through a legal practitioner. Negativing this contention, this Court held that the fact that the case against the appellant was being handled by a trained prosecutor was by itself a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him. This conclusion was recorded after reference to the earlier decisions in Brooke Bond India (Pvt.) Ltd. v. Subba Raman (S.) and Dunlop Rubber Co. v. Workmen. Reference was made to Pett case, referred to earlier, but it is observed that this case has not commended itself to this Court. The earlier cases of this Court were distinguished. In our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to