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

M/s National Organic Chemicals (RCD) Limited (hereinafter referred to as the Company) issued a show cause notice to Pandit Laduka Patil (hereinafter referred to as the employee) on 26th September 2005 stating the allegations of misconduct against him. To this, a reply was submitted. After considering the reply, the Company decided to hold a departmental enquiry against the employee and consequently issued a charge sheet on 4th November 2005. The Enquiry Officer started the enquiry as per the Standing Orders of the Company. However, the employee moved an application before the Enquiry Officer to conduct the enquiry in Marathi and also requested that the charge sheet and the Standing Order should be furnished to him in the same language. Upon such application, the Enquiry officer directed and explained to the employee that proceedings will be conducted in Marathi as per request, however, it will be recorded in English and it will be explained to him in Marathi. In furtherance to the direction issued, translated copy of the charge sheet was provided to the employee. The employee filed Complaint (ULP) No.99 of 2006 before the Labour Court, Thane, alleging that non recording the proceedings in Marathi amounts to victimisation and an unfair labour practice. This Complaint was opposed by the Company and it denied the averments made in the Complaint. An objection was also taken that the Complaint is premature. There was no violation of principles of natural justice and the enquiry was conducted in accordance with the Standing Orders. The attempt on part of the employee was to delay and prolong the disciplinary proceedings. In reply, it was also averred that the employee had put his signatures and acknowledged the proceedings from time to time. The employee had passed S.S.C. examination and had good understanding of English. Administrative language of the Company was English. As part of his duties, the employee also maintains log book in English language and has substantial experience in relation to the Company and its affairs. The employee was well versed in English language. 2. The Labour Court passed an order staying the further proceedings before the Enquiry Officer and also restrained the Company from terminating the services of the employee without following any legal process. This order allowing the interim prayers dated 13th September 2007 was challenged by the Company before the Industrial Court. The Industrial Court vide its order dated 18th January 2008 accepted the Revision preferred by the Company and the order passed by the Labour Court dated 13th September 2007 was set aside. The Industrial Court held as under:10. ... I have gone through the facts of the said case. The workman was deprived from his choice for conducting the enquiry. Moreover the enquiry was proceeded in the absence of defense representative. The workman was asked to make her statement in the absence of her representative and these facts were showing that the enquiry was not conducted in a fair and proper manner. However the facts of the present case are different. Here the opponent has demanded enquiry in the Marathi language. The enquiry officer has conducted the enquiry in Marathi. However it was recorded in English. The recording of the proceedings were explained to the opponent in Marathi. The signature of the opponent was obtained for the same. Considering these aspects and the facts that the opponent is well versed with the English language and he is doing the day to day work in the English language and even his correspondence with the company is in the English language and therefore it cannot be said that there is breach of the principles of natural justice. On the contrary, it appears that when the enquiry was started on the basis of the charge sheet dated 4.11.2005 and after attending the dates in the enquiry he filed the complaint before the Labour Court on the ground that the enquiry officer committed breach of the principles of natural justice, it appears that the opponent intends to prolong the proceedings. Unless and until the enquiry is completed, the company will not be able to take further decision. The findings of the enquiry officer are not their since the enquiry is incomplete. Therefore it is not proper to say the enquiry when prima facie, there is no breach of the principles of natural justice. Considering the ratio laid down in the Advani Oerlikons case (supra) there is no breach of the principles of natural justice in the present case also. As such, the impugned order of the Labour Court requires interference by this Court under Section 44 of the Act. Hence, I record my findings accordingly and pass the following order:ORDERThe Revision Application is hereby allowed. The Order passed by the III Labour Court, Thane, in Complaint (ULP) No. 99 of 2006, below Exh.on 13.9.2007, is hereby set aside. .... 3. The above order of the Industrial Court was impugned by the employee before this Court under Articles 226 and 227 of the Constitution of India by filing Writ Petition No. 1239 of 2008 which came up for hearing before the learned Single Judge and the learned Single Judge vide judgment dated 26th February 2008 allowed the Writ Petition, set aside the order of the Industrial Court dated 18th January 2008 and directed that the proceedings will be conducted in Marathi and reduced in writing in Marathi and noticed that the employee had assured the Court and given an undertaking that he would give fulland would not ask for unwarranted adjournment so that the enquiry could be completed within the stipulated period. 4. The Company aggrieved from the judgment passed by the learned Single Judge dated 26th February 2008 in Writ Petition No.1239 of 2008, has filed the present Letters Patent Appeal.

Reasoning:
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.