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 WRIT PETITION NO. 2791 OF 2009 WRIT PETITION NO. 2791 OF 2009 WRIT PETITION NO. 2791 OF 2009 1. Mr.Awadesh Singh Yadav, ) R.No.311, Sai Villa Complex, ) Athal. ) ) 2. Mr.Shankar C. Vasava, ) Sai Villa, Naroli Road, ) Athal, Silvassa. ) ) 3. Mr.Chetan M. Patel, ) At Post Borigam (Borifaliya), ) Tal: Umergam, Dist:Valsad. ) ) 4. Mr.Ashwin R. Singh, ) Opp: Ramkuben S. Patel, ) Bhurkud Falia, Near Ayeppa Mandia, ) Silvassa. )...Petitioners vs. 1. Labour and Enforcement Officer, ) Dadra & Nagar Haveli, ) Silvassa, Dadra & Nagar Haveli. ) ) 2. M/s.IPCA Laboratories Ltd. ) Plot No.255/1, Athal, ) Silvassa, ) Dadra & Nagar Haveli. ) ) 3. The Regional Dy.Commissioner ) (Labour Commissioner), ) Dadra & Nagar Haveli, ) Silvassa, Dadra & Nagar Haveli )...Respondents Mrs.Jane Cox for the Petitonrers. Mr.R.V. Paranjpe for Respondent No.2. Mr.Girish Kulkarni holding for Mr.Shrishailya S. Deshmukh for Respondent Nos.1 and 3. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : APRIL 24, 2009 DATED : APRIL 24, 2009 DATED : APRIL 24, 2009 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. By this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioners are challenging order passed by the Labour Enforcement Officer/Conciliation Officer, Dadra and Nagar Haveli, Silvassa, dated 21st July, 2008 granting approval for the dismissal of the petitioners under Section 33(2)(b) of the Industrial Disputes Act and seeking a direction directing the respondent no.2 to reinstate the petitioners with full backwages and continuity of service with effect from 30th March, 2007. Lastly, the petitioner is seeking a direction directing respondent no.1 to admit into conciliation the demand raised by the petitioners against the respondent company dated 28th February, 2008 and further direction directing the respondent no.3 to refer the matter for adjudication under Section 10 of the Industrial Disputes Act, 1947. 2. Shri Kulkarni, learned Counsel for respondent no.3 submits, on instructions, that respondent no.3 has decided to refer the matter for adjudication under - 3 - Section 10 of the Industrial Disputes Act, 1947 and an order of reference to that effect shall be issued within a short period of time. 3. In view of the submission made by the learned Counsel Shri Kulkarni appearing on behalf of respondent no.3, a relief claimed under prayer clause (c) does not survive. The question which falls for consideration before this Court is whether pending order of reference being issued by respondent no.3, whether this court can consider whether an order of approval which is passed by the Conciliation Officer under Section 33(2)(b), has been passed in violation of principles of natural justice by exercising its writ jurisdiction under Articles 226 and 227 of the Constitution of India. 4. The learned Counsel appearing on behalf of the petitioners has submitted that the Conciliation Officer being quasi-judicial authority was under statutory obligation to ensure that the enquiry which was conducted by the employer was fair and proper and he has followed the principles of natural justice before - 4 - considering the finding recorded by the Enquiry Officer. In support of the said submission, she has relied on the judgment of the Apex Court in the case of Lalla Ram, Lalla Ram, Lalla Ram, Appellant v. Management of D.C.M. Chemicals Works Ltd. Appellant v. Management of D.C.M. Chemicals Works Ltd. Appellant v. Management of D.C.M. Chemicals Works Ltd. and another, Respondents, reported in AIR 1978 Supreme and another, Respondents, reported in AIR 1978 Supreme and another, Respondents, reported in AIR 1978 Supreme Court 1004 Court 1004 Court 1004 and also the case between The Board of The Board of The Board of Trustees of the Port of Bombay and Dilip Raghavendranath Trustees of the Port of Bombay and Dilip Raghavendranath Trustees of the Port of Bombay and Dilip Raghavendranath Nadkarni and others, reported in Labour Law Journal, Nadkarni and others, reported in Labour Law Journal, Nadkarni and others, reported in Labour Law Journal, Volume 1 Page 1983. Volume 1 Page 1983. Volume 1 Page 1983. She submitted that firstly, after the petitioners came to know that in the enquiry which was to be held by the Enquiry Officer, the management was being represented by a person who was a Law graduate, an application was filed by the petitioners that the petitioners would be permitted to engage a person having qualification of Law graduate to appear as the Defence Assistant. Pursuant to the said letter which was written by the petitioners dated 23rd July, 2007, the petitioners were permitted to be represented by an office bearer of their trade union. It was further submitted that the petitioners were informed that the enquiry will be conducted in accordance with the scale of Model Standing Rules. Inspite of the - 5 - request made by the petitioners, the permission was not granted by the Enquiry Officer to the petitioners to be represented by a person having Law graduate qualification. However, by letter dated 22nd August, 2007, the petitioners were directed to appear alongwith a person who is a member of trade union of the Company. Accordingly, a letter was written by the petitioners requesting the Enquiry Officer to allow Shri R.B. Jadhav, Secretary of the Krantikari Kamgar Union to represent the petitioners since there are members of Krantikari Kamgar Union. A certificate and letter of authority to that effect has been issued by the General Secretary of the Krantikari Kamgar Union. The grievance of the learned Counsel for the petitioners is that thereafter when Shri Jadhav, Secretary of the Krantikari Kamgar Union appeared before the Enquiry Officer to cross-examine the witness of the company, Enquiry Officer did not permit him to cross-examine the witness on the ground that he was not a member of the recognised trade union. It was, therefore, submitted that the Enquiry Officer had violated the principles of natural justice for not permitting the member of the union to - 6 - cross-examine the witnesses though the Central Government standing orders clearly stated in Rule (ba) that the workman should be entitled to be represented by an office bearer of a trade union of which he is a member. It was submitted that therefore, in the entire enquiry, an approval which was granted by the Conciliation Officer on the basis of the said enquiry report was liable to be set aside. The learned Counsel further submitted that the witness cross-examined by the petitioners did not give the relevant answer to the question which was asked to him and the Enquiry Officer did not record the objection raised by the petitioners and as a result, the answers which were given to the questions posed by the petitioners were totally irrelevant and therefore, the entire enquiry was vitiated. 5. The learned Counsel for the respondent company, on the other hand, vehemently opposed the said submission. It was firstly submitted that since the matter has now been referred to the Industrial Court on account of statement being made by the respondent - 7 - company, there was no occasion for this Court to come into the conclusion of approval which was granted by the Conciliation Officer under Section 33(2)(b) of the Industrial Disputes Act since the said issue would be considered by the Industrial Court in the reference. Secondly, it was submitted that the word ’member of the trade union’ was to be interpreted to mean ’a member of a recognised trade union’. It was submitted that Krantikari Kamgar Union was not authorised to operate as a trade union in the Union Territory of Dadra and Nagar Haveli and therefore, the Enquiry Officer was justified in not permitting the member of Krantikari Kamgar Union to represent the petitioners herein. 6. I have heard both the learned Counsel at length. In my view, though respondent no.3 has made a statement that the dispute between the parties will be referred for adjudication before the Industrial Court, yet this Court would have jurisdiction to entertain a writ petition challenging the order passed by the Conciliation Officer under Section 33(2)(b) granting approval to the order of the termination of the - 8 - petitioners herein pursuant to the report submitted by the Enquiry Officer who had inquired into the charges levelled against the petitioners. Section 33(2)(b) reads as under :- 33. Conditions of service, etc. to remain Conditions of service, etc. to remain Conditions of service, etc. to remain unchanged under certain circumstances during unchanged under certain circumstances during unchanged under certain circumstances during pendency of proceedings. pendency of proceedings. pendency of proceedings.- (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman:" 7. Perusal of the aforesaid Section reveals that the Conciliation Officer has to pass quasi-judicial order while granting approval to the order of termination which is passed by the company during the pendency of any dispute between the employee and the company. In the present case, it is an admitted position that the charter of demand which is made by the - 9 - petitioners through the union and during the pendency of the said demand, the respondent company wanted to terminate the services of the petitioners and therefore, it was incumbent upon the Conciliation Officer to decide whether approval to the said termination should be granted or not. Since the Conciliation Officer was not acting as a quasi-judicial authority, he was bound to follow the principles of natural justice. The Apex Court in the case of Lalla Ram, Appellant v. Management Lalla Ram, Appellant v. Management Lalla Ram, Appellant v. Management of D.C.M. Chemicals Works Ltd. and another, of D.C.M. Chemicals Works Ltd. and another, of D.C.M. Chemicals Works Ltd. and another, Respondents, reported in AIR 1978 Supreme Court 1004 Respondents, reported in AIR 1978 Supreme Court 1004 Respondents, reported in AIR 1978 Supreme Court 1004 has laid down the jurisdiction of the Tribunal under Section 33(2)(b). In para 12, the Apex Court has observed as under :- "12. The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under S. 33 (2) (b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal - 10 - did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Probesh Singh, (1964) 1 SCR 709 : (AIR 1964 SC 486): Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar ((1961) 1 Lab LJ 511) (SC); Hind Construction & Engineering Co. Ltd. v. Their workmen, (1965) 2 SCR 83 : AIR 1965 SC 917; Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management, (1973), 3 SCR 587 : AIR 1973 SC 1227, and Eastern Electric and Trading Co. v. Baldev Lal, 1975 Lab IC 1435 : (AIR 1975 SC 1892) that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer had paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonable short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to - 11 - the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him." 8. In view of the ratio laid down by the Apex Court, it is apparent that while exercising power under Section 33(2)(d), the Conciliation Officer would also be duty bound to consider whether the domestic enquiry suffers from any defect or infirmity. The petitioners in present case are challenging the said finding of the Conciliation Officer who has held that the Enquiry Officer had followed the principles of natural justice and that the enquiry was fair and proper. In my view, the submission made by the petitioners will have to be accepted. Rule (ba) of the Model Standing Orders (Central) Rules reads as under :- "(ba) In the inquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member." 9. It is an admitted position that the entire - 12 - enquiry was being held under the Model Standing Orders (Central) which is apparent from the copy of the charge-sheet served on the petitioners dated 11th April, 2007. In the said charge-sheet, it has been mentioned as below :- "The above act on your part, if proved, amounts to serious acts of misconduct under the Model Standing Orders (Central) applicable to you" 10. That being the position, the Enquiry Officer ought to have permitted the office bearer of the trade union of which the petitioners were member to represent them in the enquiry. Initially, the petitioners by letter dated 23rd July, 2007 had requested the Enquiry Officer to permit them to engage a person having Law graduate qualification to appear as Defence Assistant in the domestic enquiry. The enquiry Officer, however, declined this request and informed the petitioners that they could appoint office bearer of the union as per Model Standing Orders and that permission had been granted to that effect. The said permission was granted in the proceedings which had taken on 22nd August, 2007, - 13 - copy of which is annexed at Exhibit-E to the petition. However, when the Secretary of the Krantikari Kamgar Union of which the petitioners were members appeared before the Enquiry Officer, the Enquiry Officer did not permit him to represent the petitioners herein and asked the petitioners to get office bearer of a registered trade union. Surprisingly, no further opportunity was given to the petitioners to engage the services of the so called office bearer of a recognised trade union and as a result, though the respondent company was represented by one Shri Dubey who was a person having Law graduate qualification, the petitioners could not get the assistance of either a person having a Law graduate qualification or officer bearer of their trade union of which they were members. It is an admitted position that the petitioners are illiterate persons. The petitioners have not completed their secondary school certificate examination. In the first place, the Model Standing Orders clearly said that the employee should be permitted to appoint an office bearer of the trade union of which he is a member. It does not modify the word ’trade union’ to mean ’a registered trade - 14 - union’. An Enquiry Officer, therefore, had patently erred in not permitting office bearer of a trade union of which the petitioners were the members to represent the petitioners. It is obvious that the purpose of Model Standing Rule (ba) is to ensure that the employee gets proper representation before the Enquiry Officer. Under these circumstances, in my view, the entire enquiry, therefore, is vitiated on account of principles of natural justice not being followed by the Enquiry Officer and on that ground alone, the entire enquiry stands vitiated and finding of the Enquiry Officer, therefore, could not have been relied upon by the Conciliation Officer. It is a well settled position in law that if reasonable opportunity to defend is not granted, that would clearly violate the essence of principles of natural justice. The Apex Court in the case between The Board of Trustees of the Port of Bombay The Board of Trustees of the Port of Bombay The Board of Trustees of the Port of Bombay and Dilip Raghavendranath Nadkarni and others, reported and Dilip Raghavendranath Nadkarni and others, reported and Dilip Raghavendranath Nadkarni and others, reported in Labour Law Journal, Volume 1 Page 1983 in Labour Law Journal, Volume 1 Page 1983 in Labour Law Journal, Volume 1 Page 1983 has observed in para 10 as under :- 10. Even in domestic enquiry there can be - 15 - very serious charges and 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 is generally treated as a managerial function and Enquiry Officer is more often a man of the establishment. Ordinarily he combines the role of a 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 advisers, lawyers in the garb of employees and they are appointed presenting-cum-prosecuting officers and the 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 practicioner, 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 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 managerial function. A man of the establishment does 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 - 16 - an unbiased Judge. The Enquiry Officer combines the Judge and prosecutor rolled 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 tilted 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 an 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. ................................................ ................................................ ................................................ ................................................ ................................................ 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 has 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 defend 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." - 17 - 11. In my view, therefore, the Conciliation Officer clearly erred in granting approval to the order of termination which was passed by the respondent company on the basis of the enquiry held by the Enquiry Officer and further erred in holding that there was no violation of principles of natural justice. Since the order passed by the Conciliation Officer is quasi-judicial order, he was duty bound to follow the principles of natural justice. This Court can entertain the petition under Article 226 of the Constitution of India to consider whether there was any breach of principles of natural justice. The approval granted by the Conciliation Officer under Section 33(2)(b) to order of termination to the petitioners herein is set aside and quashed. 12. It was strenuously urged by the learned Counsel appearing on behalf of the respondent that at this stage, this court should not interfere with the order of approval granted by the Labour Court. - 18 - 13. Counsel for the petitioner submitted that this Court while exercising its jurisdiction under Articles 226 and 227 could even at this stage interfere with the enquiry held by the Labour Court under an application under Section 33(2)(b). In support, he relied on the judgment of the Calcutta High Court in Tushar Kanti Ray Tushar Kanti Ray Tushar Kanti Ray vs. The Second Industrial Tribunal, West Bengal and vs. The Second Industrial Tribunal, West Bengal and vs. The Second Industrial Tribunal, West Bengal and Ors., reported in 2004 III CLR 699. Ors., reported in 2004 III CLR 699. Ors., reported in 2004 III CLR 699. 14. Counsel appearing on behalf of the respondent, on the other hand, relied on the following judgments :- 1) The Lord Krishna Textile Mills vs. Its Workmen, The Lord Krishna Textile Mills vs. Its Workmen, The Lord Krishna Textile Mills vs. Its Workmen, reported in AIR 1961 SC 860, reported in AIR 1961 SC 860, reported in AIR 1961 SC 860, 2) The Punjab National Bank The Punjab National Bank The Punjab National Bank Ltd. vs. Its Workmen, reported in AIR 1960 SC 160 Ltd. vs. Its Workmen, reported in AIR 1960 SC 160 Ltd. vs. Its Workmen, reported