IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1239 of 2008 Pandit Ladaku Patil Petitioner Vs. M/s.National Organic Chemicals (RCD) Ltd. & ors. Respondents Mr.Y.M.Pendse for petitioner. Mr.K.M.Naik with Mr.S.P.Salkar for respondent nos.1 and 2. CORAM: B.H.MARLAPALLE, J. February 26, 2008 ORAL ORDER: 1. Heard Mr.Pendse, the learned counsel for the petitioner and Mr.Naik with Mr.Salkar, the learned counsel for the respondent nos.1 and 2. Respondent no.3 is only a formal party and, therefore, no notice is required to be issued to him to decide this petition. 2. Rule. 3. Respondent nos.1 and 2 waive service 4. As the petition arises from an interlocutory order which has been set aside by the Industrial Court by allowing Revision Application (ULP) No.83 of 2007 and, therefore, the petition is taken up for final hearing forthwith. 5. The petitioner is employed as a plant operator with the respondent no.1 - company and he had passed 2 his S.S.C. before he joined the company. He was issued a charge-sheet on 4/11/2005 alleging acts of misconduct namely negligence, carelessness and disobedience of the reasonable orders of superiors and missing from the workplace for long hours while on duty thereby causing production / material loss. The charge-sheet alleged misconducts on the part of the workman under Clauses 24(a), (h), (l), (m) and (1) of the Certified Standing Orders. By the said charge-sheet the petitioner was informed that departmental enquiry will be conducted into the said charges by Mr.P.R. Hegde and the proceedings would commence on 15/11/2005 at 3.30 p.m. in the Personnel Department. He was, therefore, called upon to attend and participate in the said enquiry. He was also informed that he would be permitted to lead his oral as well as documentary evidence and if he so desired, he would be permitted to be defended by a co-worker. On 15/11/2005 the petitioner appeared before the Enquiry Officer and submitted an application in Marathi with a request (a) to supply Marathi translation of the Charge-sheet, (b) Marathi copy of the Certified Standing Orders as applicable to him, and (c) to conduct the enquiry proceedings into the charges levelled against him in Marathi language 3 including writing of the proceedings on day to day basis. On the same day he also submitted yet another application to the Factory Manager of the respondent no.1 - company requesting for a Marathi translation of the charge-sheet and Marathi version of the Certified Standing Orders as applicable to him. A copy of the said representation was also marked to the Enquiry Officer. In the proceedings held on 21/8/2006 he again submitted an application reiterating his demand for conducting the enquiry proceedings in Marathi. He asserted his right on the basis of the Standing Orders and alleged that the Enquiry Officer was not taking due steps to protect his legal rights. The Enquiry Officer considered the said application and passed an order deciding the same on 21/8/2006 itself. The concluding portion of the said order passed by the Enquiry Officer reads as under: "...In the present case the CSW knows English. However in my opinion by way of a special case not creating any precedent the Company should provide Marathi translation of the English Charge-sheet on record to the CSW. I have also decided to conduct the enquiry in Marathi 4 as desired by the CSW. However, so far as recordings of the proceedings are concerned, being my notes and also for the sake of convenience, brevity the same will be recorded in English by directly dictating to the Computer operator and the recorded proceedings will be explained to the CSW in Marathi simultaneously and before obtaining his signature. In my opinion no prejudice will be caused to the CSW. The CSW can engage a co-workman or a office bearer of the Union to assist him in the enquiry. In my opinion this will meet the ends of natural justice." 6. Being dissatisfied with the above order passed by the Enquiry Officer, the petitioner approached the Labour Court at Thane and filed Complaint (ULP) No.99 of 2006 under Items 1(a), (b) and (f) of Schedule IV read with Section 28 of the MRTU and PULP Act, 1971 ("the Act" for short), along with an application for interim relief at Exhibit U-2, under Section 30(2) of the said Act. The application was opposed by the present respondent nos.1 and 2 by filing a reply. However, the learned Judge of the Labour Court after hearing both the parties, was pleased to allow the 5 application at Exhibit U-2 and passed the following restraining order on 13/9/2007, "The respondent is temporarily restrained to proceed further with the present status of the enquiry and terminating the employment of the complainant till disposal of the complaint." 7. The respondent - company challenged this order in Revision Application (ULP) No.83 of 2007 filed under Section 44 of the Act and though the petitioner opposed the said revision, the learned Member of the Industrial Court was pleased to allow the Revision Application by his judgment and order dated 18/1/2008 and the order passed by the Labour Court below Exhibit U-2 on 13/9/2007 came to be set aside. 8. Mr.Pendse, the learned counsel for the petitioner submitted that the Industrial Court did not apply its mind to Clause 25(4) of the Model Standing Orders which as per Mr.Pendse gives a vested right to the charge-sheeted workman to opt for the language of enquiry proceedings i.e. in English, Hindi or Marathi according to his choice and the person defending him. He further submitted that the 6 view taken by the Industrial Court that the workman was well conversant with English language and, therefore, the Enquiry Officer was not obliged to conduct the enquiry in Marathi is erroneous. The Industrial Court in support of this view, relied upon the decisions in the case of Navinkumar B. Panchal Vs. Godrej Boyce Mfg. Co. Ltd. & ors. [2004 I [2004 I [2004 I CLR CLR CLR 47] 47] 47], Ravindra Umesh Gokarn & ors. Vs. Guest Keen Williams Ltd. and ors. [1992 I CLR 792] [1992 I CLR 792] [1992 I CLR 792] as well as Advani Oerlikon Ltd. Vs. Shashikant M. Sable & anr. [2008 (1) Bom.C.R. 546] [2008 (1) Bom.C.R. 546] [2008 (1) Bom.C.R. 546]. As per the Industrial Court the Enquiry Officer’s order dated 21/8/2006 was in compliance with the requirements of Clause 25(4) of the Model Standing Orders which admittedly is the similar clause in the Certified Standing Orders of the company. As per Mr.Pendse the charge-sheet as well as the findings of the Enquiry Officer must be recorded in Marathi as well as the proceedings of the Enquiry must also be recorded in Marathi and the view taken by the Enquiry Officer that the recording would be done in English after the same was explained to the CSW in Marathi is not in keeping with the mandate of Clause 25(4) of the Standing Orders and, therefore, there is a prima facie case of unfair labour practice entitling the 7 complainant for an order of interim relief. 10. Mr.Naik, the larned counsel for the respondents has fully supported the view taken by the Industrial Court and he pointed out that the decision of this Court in the case of Nandini Mehta, Proprietor of M/s. Layovak Laboratories Vs. Amol Kate & anr. [2003 III CLR 856] [2003 III CLR 856] [2003 III CLR 856] is not applicable to the facts of the present case. Mr.Naik submitted that the order passed by the Enquiry Officer on 21/8/2006 is in full compliance of the requirements of Clause 25(4) of the Model Standing Orders. 11. As noted earlier, the petitioner filed the complaint under Items 1(a), (b) and (f) of Schedule IV of the Act and the relief prayed for are, "(iii) This Honourable Court be pleased to pass an order of permanent injunction restraining the respondents from recording the enquiry proceeding in English and further be pleased to pass an order of permanent injunction directing the Respondents to proceed with the enquiry strictly as per law and in the language known to the complainant 8 i.e. Marathi and restraining them from terminating the employment of the complainant based on present nature of enquiry. (iv) This Honourable Court be pleased to pass an order of temporary injunction restraining the Respondents to proceed with the present status of enquiry and terminate the employment of the complainant by staying the process of enquiry in the interest of justice." . The Enquiry Officer came to be impleaded as the respondent no.3 and the main grievance in the complaint was set out in the following words in para 5 of the complaint, "5. The complainant says and submits that the Respondents are not offering the complainant the effective opportunity to defend himself in the enquiry acting in victimisation, not in good faith but in colourable exercise of their rights, in utter disregards to the principles of natural justice and with undue haste as though the complainant has deemed the Marathi translation 9 / version of the documents in English like that of charge-sheet and Standing Orders and recording the proceedings in the language very well known to the complainant i.e. Marathi under the pretext of convenience to the Enquiry Officer who is in fact non-Marathi person. The complainant states that if the enquiry is allowed to be continued in the manner it is carrying on by the Respondents, it is nothing but to allow the respondent to continue with violation of substantive justice and to allow the complainant the victim of unfair labour practices, even fatal to the employment of the complainant..." . Surprisingly, in the substantive prayers the petitioner did not pray for the enquiry to be conducted in Marathi including all its proceedings to be reduced in Marathi and the Enquiry Officer’s report to be submitted in Marathi and the relief prayed for was only in terms of the restraining orders. In fact this complaint could not have been entertained by the Labour Court as the apprehension that is expressed by the Apex Court in the case of Hindustan Lever Ltd. Vs. Ashok Vishnu Kate [AIR [AIR [AIR 10 1996 1996 1996 SC 285] SC 285] SC 285] did not arise in the instant case so as to give rise to a reasonable apprehension in the mind of the complainant that he was likely to be removed from service by way of punishment. Such an apprehension would crystalise when the Enquiry Officer records his findings holding the charges to have been proved and / or the employer issues a second show cause notice forwarding a copy of such report to the CSW. In addition the order passed by the Enquiry Officer on 21/8/2006 cannot be questioned by filing a complaint of unfair labour practice before the Labour Court as is done in this case. A complaint of unfair labour practice is required to be filed by an employee against the employer under Section 28 of the Act and the grievance raised must be substantially against the employer. In case the CSW is aggrieved by the order passed by the Enquiry Officer including the findings, the proper forum for raising such challenge would be when the order of termination / punishment is under challenge before the concerned forum. 12. Clause 25(4) of the Model Standing Orders reads as under: 11 "A workman against whom an enquiry 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 rest. A concise summary of the evidence led on either side and the workman’s plea shall be recorded. All proceedings of the enquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman concerned and the person defending him. The inquiry shall be completed within a period of three months. 12 Provided that the period of three months may, for reasons to be recorded in writing, be extended to such further period as may be deemed necessary by the enquiry officer." 13. The learned Single Judge of this Court in the case of M/s.Advani Oerlikon (Supra), after referring to Clause 25(4) of the Model Standing Orders, held that if the depositions of the witnesses are spoken in Marathi and are translated and written in English as part of the enquiry proceedings and if the CSW knows English language, the requirements of Clause 25(4) could be fully met and it is not necessary that the Enquiry Officer must write all the proceedings in Marathi and submit his report also in Marathi. Mr.Pendse, the learned counsel for the petitioner submitted that though he had cited the earlier decision in the case of Nandini Mehta (Supra) while advancing his arguments in the case of Advani Oerlikon (Supra), the said decision has not been referred to and in any case he has challenged the decision in the case of Advani Oerlikon in LPA No.706 of 2008 and the same is pending. 14. In my considered view, the order of the 13 Industrial Court impugned in this petition is unsustainable and the law laid down by this Court in Nandini Mehta’s case (S.B.) supports the case of the petitioner. This Court referred to the decision of the Apex Court in the case of State Bank of Patiala V. S.K. Sharma [AIR 1996 SC 1669] [AIR 1996 SC 1669] [AIR 1996 SC 1669] and observed in paras 10, 11, 12, 13 and 14 as under: "10. Applying the law laid down by the Apex Court in the State Bank of Patiala’s case to the facts of the case in hand and considering the Clause 25(4) of the Model Standing Orders, it is evident that it is for the enquiry officer to give option to the workman regarding the language in which the inquiry is to be conducted. The question of choice by the workman in that regard can arise only when the same is offered to the workman and not otherwise. The inquiry essential is to be conducted by the enquiry officer. Being so, it is for the enquiry officer to make himself acquainted of the information about the choice of the workman. The occasion for the enquiry officer to know the choice of the workman in that regard can arise only when the necessary 14 inquiry in that regard is made by the enquiry officer from the workman and not otherwise. Of course, the workman himself can also express his or her choice in that regard. But the inquiry being essentially to be conducted by the enquiry officer, it will be primarily for the enquiry officer to get himself acquainted about the choice of the workman by making the necessary inquiry in that regard from the workman. Mere passive attitude on the part of the workman in that regard will not empower the enquiry officer to ignore the necessary requirement of the Standing Orders in that regard and to decide himself about the language in which the inquiry is to be conducted. Undisputedly, the records of the case in hand disclose that the enquiry officer had informed the workman that the inquiry would be conducted in Hindi and/or Marathi and the same would be recorded in English. A clear recording to that effect is to be found in the inquiry proceedings which reads as under :- "Mrs. Kanade states that she has 15 understood the procedure of the enquiry. I further told her that the enquiry will be conducted in Hindi and/or Marathi, however, the same will be recorded in English. Mr. Kanade has no objection to the same." 11. The records further disclose that after recording the testimony of Mr. Kanani it was recorded that "That the deposition of Mr. Vasantrai Kanani is over. I explained the same to Mrs.Kanade in Marathi. She states that she has understood the same." The above recording apparently discloses that it was not left to the workman to make any choice regarding the language in which the inquiry was to be conducted but it was decided by the enquiry officer himself that the inquiry would be conducted either in Hindi or Marathi and it would be recorded in English. The statement in the proceedings quoted above clearly reveal that the enquiry officer had not made any inquiry from the workman but on the contrary, he himself had decided about the language in which the inquiry would be conduced and 16 recorded, and the same was merely communicated to the workman. There is nothing on record to disclose that the workman knew English language. It is also not in dispute that the workman was represented by the officer of the Union. There is no confirmation regarding assent by the Union’s representative in respect of the choice having been made by the workman regarding the language or that the workman had consented to the decision of the enquiry officer as regards the language in which the inquiry was to be conducted and/or recorded. 12. Once it is clear that the Standing Orders, applicable to the parties, clearly requires the inquiry to be conducted in the language according to the choice of the workman, and the records nowhere disclose that such an opportunity to make choice being offered to the workman, and on the contrary, the decision of the enquiry officer in that regard was merely intimated to the workman, it is apparent that the mandatory requirement of the Standing Orders was not complied with by 17 the enquiry officer. 13. Bare reading of the Clause 25(4) of the Model Standing Orders would disclose that the said provision is essentially in the interest of the workman. Undoubtedly, once the provision is in the interest of the workman, applying the law laid down by the Apex Court in State Bank of Patiala’s case, it is to be seen whether the workman had waived the requirement of the procedural provision in relation to the choice of language in which the inquiry was to be conducted. The contention in that regard sought to be raised is that the workman never objected to the said procedure and the proceedings disclose that she had consented to the same. As already observed above, the records nowhere disclose that the workman knew the English language. The records nowhere disclose that after being intimated of the decision of the enquiry officer to proceed to conduct the inquiry either in Hindi or Marathi and to record it in English, that the workman had given her consent to the same. Undisputedly, neither 18 the representative of the workman had given his consent for the same. There is nothing on record to presume that the workman was made aware of her right and that knowing the same she had waived the same. The question of waiver can arise only when the workman was made aware of the said right and yet she had not either opted to exercise the same or that she had consented for the waiver of the said right. Once the records nowhere disclose any of such things, there is no scope to contend that the workman, in the case in hand, had waived her right as regards the choice of language in which the inquiry was to be conducted. 14. Once it is held that the Standing Orders essentially require choice to be given to the workman as regards the language in which the inquiry was to be conducted and no choice was offered in that regard to the workman and it was unilaterally decided by the enquiry officer to conduct it in a particular language and to record it in another language, would undoubtedly result in grave prejudice 19 and injustice to the workman. It is necessary to give option to the workman as regards the language of the inquiry in terms of the Standing Orders as it would ensure proper, valid, just and fair procedure for the workman to defend himself / herself effectively and efficiently. The decision in S.K. Sharma’s case has to be read along with the decision in Managing Director, ECIL, Hyderabad & ors. v. B. Karunakar & ors. reported in 1993 II CLR 1129 SC." 15. Thus the Industrial Court committed grave error in giving a restricted meaning to the following provisions in Clause 25 (4) of the Standing Orders, "All proceedings of the enquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman concerned and the person defending him." The term "All proceedings of the enquiry" would, as rightly submitted by Mr.Pendse, begin from the issuance of the charge-sheet and would end by the enquiry officer submitting his findings and in 20 between stages are the proceedings conducted by the enquiry officer namely recording of evidence, oral as well as documentary, a concise summary of the evidence led on either side and the workman’s plea is also required to be recorded, the workman is required to be permitted to produce witnesses in his defence and cross-examine any witness on whose evidence the charges rest. In the instant case the enquiry officer in his order dated 21/8/2006 though stated that the enquiry would be conducted in Marathi, but qualified it by saying that the proceedings would be recorded in English by directly dictating to the Computer operator. As is clear from the record, the CSW was defending himself before the enquiry officer at least till 21/8/2006. Mr.Naik, the learned counsel for the respondents referred to the employment form filled in by the petitioner and pointed out the petitioner’s declaration that he knows English reading and writing. Notwithstanding such a declaration, the Model Standing Orders vest a legal right in favour of the CSW to have the choice of the language for conducting the enquiry proceedings i.e. either English, Hindi or Marathi. The view taken by the enquiry officer is neither here nor there and it would not meet the requirements of 21 the Model Standing Orders which have given choice to the CSW. The CSW in his application submitted at the first instance on 15/11/2005 clearly opted for the proceedings to be written in Marathi and the enquiry report also to be submitted in Marathi. The enquiry officer must do so and he has no choice irrespective of whether the CSW is defended by any other representative of the Union or he defends himself. The order passed by the enquiry officer on 21/8/2006 does not meet the requirements of the principles of natural justice as well. This view is supported by the earlier judgment of this Court in Nandini Mehta’s case (Supra). The proceedings of the enquiry cannot be discerned in pieces and they must be treated in their entirety i.e. from the stage of issuance of charge-sheet till the stage the enquiry officer submits his findings. The view taken by the Enquiry Officer that the proceedings would be explained in Marathi and then reduced in writing in English does not meet the requirements of Clause 25(4) of the Standing Orders and, therefore, the order passed by the Industrial Court is required to be interfered with, notwithstanding the fact that the complaint filed by the petitioner prayed for only the relief of injunctions. 22 16. In the premises, this petition succeeds and the impugned order passed by the Industrial Court on 18/1/2008 is hereby quashed and set aside. The enquiry instituted against the petitioner on the basis of the charge-sheet dated 4/11/2005 shall be conducted in Marathi viz. the proceedings shall be reduced in writing in Marathi and