:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3481 OF 2002 The Managing Director, Shri Bhogawati Sahakari Sakhar Karkhana Ltd. ..Petitioner Vs. 1. Shri Dhondiram Tukaram Patil and ors. ..Respondents Mr. S.S. Pakale for petitioner. Mr. M.S. Topkar for respondent no.1. CORAM: CORAM: CORAM: B.H. B.H. B.H. MARLAPALLE, J. MARLAPALLE, J. MARLAPALLE, J. Date Date Date : : : November 21, 2007. November 21, 2007. November 21, 2007. P.C.: P.C.: P.C.: 1. Heard Mr. Pakale the learned counsel for the petitioner and Mr. Topkar the learned counsel for the respondent no.1. Respondent Nos. 2 and 3 are not necessary parties and they stand deleted forthwith. 2. Rule. Mr. Topkar waives service for respondent no.1. Rule is taken up for final hearing forthwith. :2: 3. Though this petition is titled as the one filed under Article 226 and 227 of the Constitution, I am treating this petition and dealing with the same as the one filed under Article 227 of the Constitution as it challenges interlocutory order on the preliminary point of legality of the domestic enquiry passed by the Labour Court on 30/5/1992 in B.I.R. Application No. 6 of 1982 and confirmed by the Industrial Court in Appeal (IC) No. 13 of 1992. 4. On 4/7/2002 this petition was rejected summarily and, therefore, the said order came to be challenged in Letters Patent Appeal No. 345 of 2002. The Division Bench of this court by its Judgment dated 9/6/2005 allowed the LPA, set aside order dated 4-7-2002 passed by the Single Bench and restored the writ petition to consider it afresh in accordance with the provisions of law and that is how the petition has come up for consideration afresh on merits. 5. Brief facts which are not in dispute and relevant for the consideration of this petition are that the petitioner is a Co-operative Sugar Factory :3: and provisions of Bombay Industrial Relations Act, 1946 (for short BIR Act) are applicable to the said factory. Certified Standing Orders of the Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Limited governed the service conditions of the employees. The respondent-employee was working as slip boy and his job was to record the exact weight of sugar-cane brought by the members and issue a slip in that behalf. It was alleged by the petitioner that while discharging his duties, the respondent was found acting fraudulently and with ulterior motive. He used to maintain false and incorrect records and issue manipulated slips. He was, therefore, placed under suspension and charge-sheet was issued on 14/11/1980 levelling the following charges:- (a) Mis-appropriation, dishonesty and fraudulent behaviour. (b) Creating false records & tampering with the records and documents. (c) Creating false records in collusion with other employees for personal gain and making :4: huge loss to the Karkhana. (d) Intentional negligence. (e) Mis-behaving within the premises of Karkhana. 6. A department enquiry was instituted against the respondent and Shri J.S. Sawant was the Enquiry Officer, whereas the petitioner was represented by its Personnel Officer Shri P.D. Chougule. The employee’s request for engaging a practicing Advocate to defend him before the Enquiry Officer was turned down. Enquiry was continued in which the employee participated and on conclusion of the enquiry proceeding, the Enquiry Officer submitted his report holding the employee guilty of the charges levelled against him. These findings were accepted by the Management and after taking into consideration the past service record of the employee, the gravity and seriousness of the misconduct committed, the punishment of dismissal from service was awarded and consequently by order dated 21/9/1981 he was dismissed. The said dismissal order is the subject :5: matter of challenge in B.I.R. Application No. 6 of 1982 before the Labour Court. The Labour Court framed the preliminary issue regarding the legality and validity of the domestic enquiry conducted against the employee and by the impugned order dated 30/5/1992 answered the issue in favour of the employee that the enquiry conducted against him was vitiated for two reasons, namely, (a) Mr. Chougule who was the Presenting Officer was also examined as a witness of the Management/prosecution and (b) the employee was not allowed to be represented through a practicing Advocate. This view taken by the learned Judge of the Labour Court has been confirmed by the Industrial Court by dismissing the Appeal (IC) No. 13 of 1992. The Division Bench in LAP No. 345 of 2002 arising from the order dated 4/7/2002 passed in this petition has held on the first issue as under:- (a) The law as such on the point of examination of the presenting officer as the witness being clear and there being no bar provided in that regard, merely because the presenting officer is examined as a witness, that by itself cannot be a justification to :6: conclude the enquiry to have been vitiated. (b) Undoubtedly, in a given case if the employee is able to point out that the examination of the presenting officer has in fact caused prejudice to the employee or for any other reason and on that count the enquiry can be said to be vitiated, it is necessary for the Court to analyse the materials on record in that regard vis-a-vis the contention sought to be raised by the employee and to arrive at an appropriate finding before holding the enquiry to have been vitiated on that count. However, in no case mere examination of the presenting officer as the witness can itself lead to the conclusion that the enquiry is vitiated. It was, therefore, necessary for the learned single Judge to ascertain whether the respondent Nos.2 and 3 have analysed the materials in that regard to hold that the enquiry stood vitiated on account of examination of the presenting officer as the witness and having not done so before dismissing the petition, certainly the :7: appellant is justified in contending that it has resulted in miscarriage of justice. 7. The above view recorded by the Division Bench while remanding the petition for fresh hearing clearly indicates that I am required to examine whether the Labour Court and the Industrial Court analysed the materials so as to find out whether the examination of the presenting officer did cause prejudice to the employee. With the assistance of both the learned counsel I have gone through the reasoning set out by the Labour Court and the Industrial Court and I found that there is no finding at all regarding any prejudice having been caused by the examination of Mr.Chougule, presenting officer as one of the witnesses of the Management. It is admitted that Mr. Chougule was holding the post of Personnel Officer and did not possess a law degree. He, therefore, could not be said to be a legal practitioner or expert in law representing the Management side. Even the depositions of Mr. Chougule in his examination-in-chief as well as in the cross-examination have not been considered by both the :8: courts below, whether his role as a witness as well as the presenting officer came in the way of the enquiry officer coming to proper conclusions for recording his findings against the employee. Therefore, the first ground that Mr. Chougule was examined as a witness and, therefore the enquiry was vitiated is unsustainable. 8. Now coming to the second point, a number of authorities have been cited by Mr. Topkar as well as Mr. Pakale. Mr. Topkar relied upon a decision in the case of The Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni and ors. [AIR 1983 SC 109] and the following decisions of this court:- (a) Ghatge Patil Transport Pvt. Ltd. vs. B.K. Etale & Ors. [1984 II L.L.J. 121]. (b) Nabisha Hussein Shaikh vs. K.K. Uppal and anr. [1992 I CLR 148]. (c) Antonio B. Furtado vs. Chairman & Managing Director, Bank of India, Bombay and :9: ors. [1986 LAB.I.C. 613]. . In Nadkarni’s case (Supra) their Lordships noted that a Chairman of the Board of Trustees while rejecting the request of the employee for permission to be defended through a legal practitioner and simultaneously appointed M/s. R.K. Shetty and A.B. Chaudhary, Legal Adviser and Junior Assistant Legal Adviser respectively and, therefore, in para 11 their Lordships observed as under:- "...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 prosecutors, he simultaneously proceeds to deny such legal representation to the :10: delinquent employee, when he declined the permission to the first respondent to appear through a legal practitioner. 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 first 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 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. More so 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 proposition, in the facts of this case, this :11: 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 of the essential principles of natural justice, namely, that a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself." 9. On the other hand, Mr. Pakale relied upon the following decisions in support of his arguments that denial to the employee to be represented through a practicing Advocate does not vitiate the domestic :12: enquiry:- (a) Kalindi (N) v. Tata Locomotive & Engineering Co. Ltd. Jamshedpur [AIR 1960 SC 914]. (b) Dunlop Rubber Co. v. Workmen [AIR 1965 SC 1392]. (c) Brooke Bond India (P) Ltd. v. Subba Raman (S.) [(1961) 2 LLJ 417]. (d) Crescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi [(1992) 3 Scale 518]. (e) Bharat Petroleum Corpn. Ltd. v. Maharshtra General Kamgar Union [(1999) 1 SCC 626] (f) Cipla Ltd. and ors. v. Ripu Daman Bhanot and anr. [(1999) 4 SCC 188]. . A three Judge Bench in Crescent Dyes and Chemicals’s case (Supra), after examining all earlier :13: decisions on the point of the employee’s right to be defended in a domestic enquiry through a practicing Advocate held that the right of representation flows from the Rules of Discipline and Appeal or the Standing Orders, whether Certified or Modern Standing Orders and, therefore, if in the concerned service rules there were no provisions for such a representation, the enquiry cannot be vitiated merely because the delinquent was not allowed to be represented through a practicing Advocate. By following the law laid down in Crescent Dyes and Chemicals (Supra), subsequently the Supreme Court in the case of Cipla Ltd. (Supra) held that even if the employee had contended that he was entitled to be represented by the practicing Advocate in the departmental proceedings as the question involved in the proceedings would be complicated, denial to such a request would not vitiate the proceedings under the domestic enquiry. 10. In the instant case Clause 24 of the Certified Standing Orders deals with the disciplinary proceedings in case of any misconduct and sub-clause 5 :14: thereunder does not provide that the delinquent - employee is required to be defended by a practicing Advocate. As noted earlier, the management was represented by Mr. Chougule who was not a legally trained person and, therefore, the observations made by the Division Bench of this court in Ghatge Patil’s case (Supra), as reproduced below, would not be application:- ". As held by the Supreme Court in the latest case i.e. The Board of Trustees of the Port of Bombay v. Dilipkumar Nadkarni, apart from the provisions of laws, it is one of the basic principles of natural justice that the inquiry should be fair and impartial. Even if there is no provision in the Standing Order or in law, where in an inquiry before the 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 to defend himself and the essential principles of natural justice would be violated." 11. The law laid down by the Apex Court in the :15: case of Crescent Dyes and Chemicals Ltd., Bharat Petroleum Corpn. and Cipla Ltd. does not support the case of the employee and the law is clear that it is not a vested legal right to be represented by a practicing Advocate in the departmental enquiry. Thus, the view taken by the courts below that the domestic enquiry was vitiated on the second point i.e. on the count of denial to employee being defended by a practicing Advocate is also equally unsustainable. 12. I must also deal with the point of maintainability of petition raised by Mr. Topkar the learned counsel for the respondent-employee. The order passed by the Division Bench restoring the petition is clear. Mr. Topkar contended, by relying upon the decision in the case of D.P. Maheshwari v. Delhi Admn. and ors. [1983 LAB. I.C. 1629], that the petition challenging the findings on preliminary issue was not maintainable. However, such an issue was never agitated before the Division Bench and in any case the law laid down by the Apex Court in the D.P. Maheshwari’s case (Supra) is not a total fetter entertaining a writ petition under Article 227 of the Constitution against an interlocutory order. The :16: following observations made by their Lordships in the said case reproduced as under:- "... We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not :17: meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences....." 13. This petition has been pending for the last more than seven years and admittedly the pending application before the Labour Court remained on file and, therefore, it was heard and decided at the admission stage itself and it would be appropriate that the pending application is directed to be decided within a fixed period. I, therefore, do not agree with Mr. Topkar that this petition is required to be thrown out on the preliminary point of its maintainability. 14. In the premises, the petition succeeds and the same is hereby allowed. The impugned order passed by the Labour Court and confirmed by the Industrial Court :18: in Appeal (IC) No. 13 of 1992 is hereby quashed and set aside. It is further directed that BIR Application No. 6 of 1982 shall be heard and decided on its own merits as expeditiously as possible and in any case within a period of six months from the receipt of writ by the Labour Court. 15. Rule is made absolute accordingly. No costs. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)