Case: National Organic Chemicals (Rcd) Limited &amp; Another Vs. Pandit Ladaku Patil

may be certain procedural provisions which are of a fundamental character whose violation by itself is proof of prejudice. It hastened to add that the enquiry officer has to provide opportunity of choice to the workman and it is not his passive attitude which can lead to the exercise of choice. In this very judgment, the court returned the finding The 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 On facts, the court came to the conclusion that such choice was not given to the workman observing that there is nothing on record to disclose that the workman knew English language. In this case, the court no way felt that the principle of substantial compliance was applicable while in the case of Advani Oerlicon, the learned Judge really did not go into the legal controversy in greater detail but noticed It would not be necessary for me to answer the aforesaid questions in the present case as the workman was represented by a defence representative who was well versed in the English language. Admittedly, he had posed questions during the cross-examination of the witnesses of the Management in English. Upholding the applicability of principle of substantial compliance, the court noticed that no prejudice has been caused to the workman by recording testimony in English. Thus, on the proper construction of these two judgments and in the light of the principles aforenoticed by us, it can safely be held that standing order 25(4) is capable of attracting the principle of substantial compliance, however, it may not be possible to lay down any universally applicable principle as it essentially would have to be decided with reference to the facts and circumstances of each case. 19. Reverting back to the facts of the present case, the chargesheet dated 4th November, 2005 in English was served upon the petitioner and subsequently, at his request, admittedly, the translated Marathi copy was directed to be served upon the petitioner by order dated 21st August, 2006. Before 21st August, 2006, the petitioner participated in the departmental proceedings without any protest. In fact, the proceedings before the enquiry officer were conducted in Marathi but were recorded in English. It has been brought on record that the petitioner is S.C.C. passed and has an experience of 20 years working as Plant Operator. He is stated to be fully acquainted with English language. It appears that he raised objection during the enquiry proceedings on 21st August, 2006 when the enquiry officer immediately passed an order directing supply of chargesheet in Marathi language and also that proceedings will be conducted in Marathi, however, they may be recorded in English. It may also be noticed that the enquiry officer had informed the workman about the choice of English. The enquiry officer had recorded the following ruling during the pendency of the departmental enquiry: The CSW has also nowhere contended that at any time in the past the Company had made any correspondence in a language other than English. 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 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. 20. In the proceedings dated 21st August, 2006, it was also noticed that all the work being done by the employee in the Company for these long years was in no other language except English. Despite noticing all this, the enquiry officer has directed supply of translated copy of chargesheet and directed conducting of enquiry proceedings in Marathi though their records may be maintained in English. In the present petition itself, before the learned Single Judge and even in the Memorandum of Appeal, it is nowhere stated that these facts have been disputed by the workman and it is also not stated that the workman is not fully familiar or knows English language. It is also admitted that the enquiry proceedings before recording were explained to the employee in Marathi. In the backdrop of these facts, it cannot be said that the employee has suffered any prejudice because of the rulings passed by the enquiry officer. Choice is a matter of discretion and is capable of being waived by his conduct or otherwise. Once the choice is given and there is substantial compliance to the standing order, the domestic enquiry then can hardly be vitiated on such a ground. We are not prepared to accept the contention that generally and particularly, in the facts and circumstances of the case, standing order 25(4) would in no way admit the principle of substantial compliance and it is not required of the affected party to show any element of prejudice. It is not a case where no choice was given to the employee, on the contrary, employee accepted the same and, as a matter of fact, the employee not only knows English language but has been working in the Company and doing his work in English language for all these years with the basic fact that he studied in English upto Secondary School Examination. The order of the Enquiry Officer neither violates the essence of standing order 25(4) nor the principles of natural justice, in the facts and circumstances of the present case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Primarily, the Court is concerned with the later part of this Standing Order. It imposes an obligation upon the Enquiry Officer and the employer that all proceedings shall be conducted in English, Hindi or Marathi, according to the choice of the workman concerned and the person defending him. In other words, it gives an option to the workmen to opt for recording of proceedings in any one of the languages stated therein. The fact that there is an element of option indicates that there is intent of flexibility which is permissible within the ambit and scope of the Standing Order. Of course, preferential choice has been vested with the employee and he could give choice in any form i.e. in writing, by his conduct or by both. This Standing Order is primarily intended to control the procedure of departmental enquiry and is not so mandatory in its application that its violation would always result in vitiation of the enquiry even if there was no element of prejudice claimed by the employee. Again prejudice is a matter which has to be examined with objectivity, however, is subjective in satisfaction. The learned Single Judge himself noticed that another bench of this Court in the case of Advani Oerlikon Ltd. Vs Shashikant M Sable and others (Writ Petition No.972 of 1997) decided on 30th November 2007 had taken the view, while referring to the same Standing Order 25(4) that where witnesses have spoken in Marathi, it is translated and recorded in English and the employee knows English language, the requirement of the clause would be fully met and it is not absolutely mandatory for the Enquiry Officer to write the proceedings in Marathi. Merely because an Appeal was preferred against this judgment of the learned Single Judge, would not take away the right of the Company to rely upon that view on which hardly any analysis has been offered by the learned Single Judge in the impugnedalready noticed, in some cases,of procedural provisions which are not of statutory or mandatory character would not invite necessity for presuming prejudice as prejudice per se may not be inferred from breach of every instruction, rule or standing order. Departmental enquiry is to be tested on theof justness and fairness and the principles of natural justice. Where there are regulatory or procedural provisions or orders and they have substantially complied with without causing any prejudice to the delinquent, it may not be necessary for the court to set aside the enquiry itself. Prejudice is capable of being inferred only in cases of violation of mandatory statutorythe certified standing orders have statutory force and are strictly to be construed and implemented in accordance with the principles of natural justice as they would attract application of such basic fundamentals.On the analysis of the above judgments, it is clear that the statutory rules or even the standing orders have to be read and construed to achieve the ends of natural justice and not to give them such strict interpretation so as to defeat the very purpose of principle of fairness. As already noticed, the intent behind the standing order 25(4) is to ensure that the workman is able to exercise his choice of language at the initial stage itself but where the workman himself makes a choice by his conduct or otherwise and participates in the enquiry without any demur thereafter on the completion of the enquiry, it will be quite inconsistent for the workman to raise an objection to the validity of the enquiry on the ground of language. To put it more simply to give choice under Standing Order 25(4) to the workman is mandatory and the workman having accepted such a choice if participated in the conduct of the enquiry, the principle of substantial compliance would be attracted. Where no choice is given to the workman, the matter would certainly fall in a different category of cases.already noticed, in Nandini Mehtas case (supra), the Court had specifically noticed that there may be certain procedural provisions which are of a fundamental character whose violation by itself is proof of prejudice. It hastened to add that the enquiry officer has to provide opportunity of choice to the workman and it is not his passive attitude which can lead to the exercise ofhe had posed questions during theof the witnesses of the Management in English. Upholding the applicability of principle of substantial compliance, the court noticed that no prejudice has been caused to the workman by recording testimony in English. Thus, on the proper construction of these two judgments and in the light of the principles aforenoticed by us, it can safely be held that standing order 25(4) is capable of attracting the principle of substantial compliance, however, it may not be possible to lay down any universally applicable principle as it essentially would have to be decided with reference to the facts and circumstances of each case.Reverting back to the facts of the present case, the chargesheet dated 4th November, 2005 in English was served upon the petitioner and subsequently, at his request, admittedly, the translated Marathi copy was directed to be served upon the petitioner by order dated 21st August, 2006. Before 21st August, 2006, the petitioner participated in the departmental proceedings without any protest. In fact, the proceedings before the enquiry officer were conducted in Marathi but were recorded in English. It has been brought on record that the petitioner is S.C.C. passed and has an experience of 20 years working as Plant Operator. He is stated to be fully acquainted with English language. It appears that he raised objection during the enquiry proceedings on 21st August, 2006 when the enquiry officer immediately passed an order directing supply of chargesheet in Marathi language and also that proceedings will be conducted in Marathi, however, they may be recorded in English. It may also be noticed that the enquiry officer had informed the workman about the choice ofthe present petition itself, before the learned Single Judge and even in the Memorandum of Appeal, it is nowhere stated that these facts have been disputed by the workman and it is also not stated that the workman is not fully familiar or knows English language. It is also admitted that the enquiry proceedings before recording were explained to the employee in Marathi. In the backdrop of these facts, it cannot be said that the employee has suffered any prejudice because of the rulings passed by the enquiry officer. Choice is a matter of discretion and is capable of being waived by his conduct or otherwise. Once the choice is given and there is substantial compliance to the standing order, the domestic enquiry then can hardly be vitiated on such a ground. We are not prepared to accept the contention that generally and particularly, in the facts and circumstances of the case, standing order 25(4) would in no way admit the principle of substantial compliance and it is not required of the affected party to show any element of prejudice. It is not a case where no choice was given to the employee, on the contrary, employee accepted the same and, as a matter of fact, the employee not only knows English language but has been working in the Company and doing his work in English language for all these years with the basic fact that he studied in English upto Secondary School Examination. The order of the Enquiry Officer neither violates the essence of standing order 25(4) nor the principles of natural justice, in the facts and circumstances of the present case.