( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2029 OF 1991 Changdeo s/o Nivrutti Lahare R/o Wakadi, Tq. Shrirampur, District Ahmednagar. PETITIONER VERSUS 1. Managing Director, Shrirampur Taluka Kapus Utpadak Sahakari Soot Girni Ltd., Shrirampur, Tq. Shrirampur, District Ahmednagar. 1A. Liquidator, Shrirampur Taluka Kapus Utpadak Sahakari Soot Girni Ltd., Shrirampur, Taluka Shrirampur, District Ahmednagar. 2. Industrial Court, Ahmednagar, Dist. Ahmednagar. RESPONDENTS ..... Mr. S.V. Natu, advocate for the petitioner. Mr. N.N. Jadhav, AGP for respondent No. 1A. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 14th January, 2010] ORAL JUDGEMENT : 1. Challenge in this petition is to judgement and order rendered by learned Member of Industrial Court, Ahmednagar, in revision application (IC) No. 1/1990. ( 2 ) 2. The petitioner was working on establishment of the respondent No. 1 as Fieldman in Agricultural Department. He was also active member of the Labour Union and was office bearer thereof. Allegedly, he had committed misconduct by abusing the superior authorities, threatening them, causing interference in the work of other employees and committing disassociation. A show-cause notice was served on him by communication dated 20-01-1983. The petitioner was placed under suspension during the period of disciplinary enquiry. An Enquiry Officer was appointed. The enquiry was completed and thereafter, he was removed from service. 3. The petitioner challenged the disciplinary action on the ground that he was victimized due to union rivalry and biased approach of the Managing Director of the respondent No.1. He asserted that he was not given proper and sufficient opportunity to defend himself during the inquiry. He also contended that he was not paid subsistence allowance during the period of ( 3 ) suspension and was unable to arrange for his defence. He contended that after completing the enquiry, he was not given further opportunity of hearing on the question of proposed penalty of removal. According to him, the Managing Director had taken keen interest in the conduct of the enquiry against him with a view to shunt him out of service. He pointed out that the Managing Director personally attended the enquiry during the proceedings conducted before the nominated Enquiry Officer. Hence, he urged to quash the enquiry proceedings by filing the application (BIR) No. 16/1984. The learned Judge of the Labour Court allowed his application vide judtement dated 27-09-1990. The respondent No. 1 preferred revision application (IC) No. 1/1990. The learned Member of the Industrial Court allowed the revision application and held that removal of the petitioner from service was legal, proper and valid. 4. Heard learned counsel and learned A.G.P. 5. There are three important aspects of the matter. First, it is amply clear from the record that ( 4 ) Managing Director was personally present when the enquiry was conducted. The testimony of witness Sudhakar Tanpure, Head Time-Keeper, revealed that the Managing Director alongwith Administrator of the respondent No. 1 attended the proceedings of the enquiry. Thus, it is amply clear that the superior authorities, including the Managing Director took keen interest in the proceedings of the enquiry. It has come on the record that the Managing Director had issued the chargesheet to the petitioner. All the witnesses examined during the course of disciplinary enquiry were subordinate to the Managing Director and the Administrator of the respondent No.1. The Industrial Court held that mere presence of the Managing Director, without there being material to assume his influence on the witnesses, by itself will not vitiate the enquiry. What is the measure adopted by the Industrial Court to reach the conclusion that there was absence of influence on the witnesses, is rather difficult to comprehend. The question is not whether the witnesses were influenced by the Managing Director or the Administrative Officer, but the question is whether it is fair on their part to participate in the ( 5 ) proceedings of the enquiry when the witnesses were subordinate to them and particularly, when the Managing Director himself was the initiator of the disciplinary enquiry. It is significance to notice that one of the limb of the contention of the respondent No. 1 was that the petitioner had misbehaved with the Managing Director. In order to ensure fair enquiry, the Managing Director ought to have remained out of the picture. His presence at the time of enquiry is fiduciary relationship with the witnesses, he being an interested person to commence the enquiry and possible influence which he can not wield are sure indicatives of unfairness of the proceedings. There is no need to prove upto the hilt that there was actual influence of the Managing Director on the witnesses. He did not explain as to why for, he personally attended the disciplinary enquiry when the Presenting Officer was appointed. Under the circumstances, the finding of the Industrial Court is improper and perverse and, therefore, it will have to be said that the enquiry conducted against the petitioner was unfair and prejudicial to him. ( 6 ) 6. The petitioner was not paid subsistence allowance as he specifically pleaded in paragraph No. 5 of his pleadings before the Labour Court. This averment in is pleadings remained uncontroverted. The respondent No. 1 did not explain anything about non-payment of the subsistence allowance to the petitioner. The reply to paragraph No. 5 of the pleadings does not refer to the allegations regarding non-payment of the subsistence allowance. It is imperative that due to non-payment of the subsistence allowance, there was financial difficulty caused to the petitioner to defend himself. The Apex Court in “Jagdamba Prasad Shukla v. State of U.P. and others” (2000) 7 SCC 90, held that payment of subsistence allowance is a right of the employee and not a bounty. It was held that the departmental enquiry and the consequent order of removal from service was in breach of the principles of natural justice due to the non-payment of the subsistence allowance and as such, the proceedings were vitiated. There is nothing to show that the petitioner was given due financial help to ( 7 ) arrange for his defence and to sustain during the pendency of the disciplinary enquiry. 7. Coming to the third ground, it emerges that the petitioner repeatedly sought appointment of a lawyer to defend himself. He contended that the Presenting Officer was a lawyer. The Enquiry Officer was a law graduate and that for effective defence, it was necessary for him to obtain help of a competent person in the legal field. His application was rejected by the Enquiry Officer. He had lateron applied for allowing him to appoint as his representative one Shri Choudhary who is lawyer as well as office bearer of Labour Union. That application was also turned down. It is true, no doubt, that the Standing Order does not provide for representation by a lawyer. It is conspicuous from clause 22 (4) of the certified Standing Orders that the workman can be permitted to engage a representative, working in the same department or office bearer of any Trade Union. Though such provision is explicit from clause 22 (4) of the certified Standing Orders, yet, it is equally important that he is not prohibited as such ( 8 ) to get help of a lawyer in an appropriate case. The Enquiry Officer was, therefore, required to consider whether due to complexity of the charges and because of the fact that the Presenting Officer himself was lawyer, such permission could be granted in order to upkeep fairness of the enquiry. He straightway refused the permission sought by the petitioner. Needless to say, there was element of unfairness in the enquiry due to non-consideration of the request of the petitioner to allow legal assistance in order to defend him. What transpires from the proceedings of the disciplinary enquiry is that the Managing Director and the Administrator were bent upon to show exit to the petitioner. 8. The matter does not stop here. The petitioner was not served with any notice alongwith enquiry report so as to give him reasonable opportunity of hearing before passing final order of removal from service. This may not be the requirement under the Standing Orders, yet, it is part of the principles of natural ( 9 ) justice. The Apex Court in “Union of India and others v. Mohd. Ramzan Khan” (AIR 1991 S.C. 471), held that order of punishment stood vitiated on account of non- supply of copy of the report of the Enquiry Officer. 9. The Enquiry Officer considered the evidence of some witnesses whose statements were recorded behind back of the petitioner. The petitioner was a Union leader and certain litigation was started by the Union against the Management of the respondent No. 1. It was, therefore, necessary to ensure that the enquiry was not lopsided but was fair enough to dispel all the clouds of suspicion and unfairness. The learned Judge of the Labour Court was right in concluding that the disciplinary enquiry was unfair and improper. The Industrial Court should not have interfered with the findings of the Labour Court, particularly, in the exercise of revisional jurisdiction, when the re- appreciation of evidence and re-consideration of the factual aspects could not have been undertaken. Though the record revealed that some of the statements were ( 10 ) recorded behind back of the petitioner, yet, the Industrial Court rejected such contention on the ground that the petitioner was representing 50 to 60 workers in other departmental enquiries. The reasons recorded by the Industrial Court are rather far-fetched and illogical. 10. For the reasons aforestated, I am of the opinion that the impugned judgement of the Industrial Court is quite unsustainable and against the settled norms of service jurisprudence. In this view of the matter, the petition is allowed. The impugned judgement is set aside. In view of the passage of time, and since the charges have become stale as a result of subsequent developments, particularly because the respondent No. 1 has gone under liquidation, the directions issued by the Labour Court to permit afresh enquiry proceedings are also quashed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp2029-91 ( 11 )