Case: Crescent Dyes &amp; Chemicals Limited Vs. Ram Naresh Tripathi

The facts which we may notice for the disposal of this appeal are as under:3. The workman, Ram Naresh Tripathi, wason November 29, 1980 for misconduct. A domestic enquiry was ordered and an enquiry officer was appointed to enquire into the alleged acts ofof the delinquent. The delinquent requested the enquiry officer to permit him to be defended by one Talraja who claimed to be an office bearer of the Bombay Mazdoor Union of which the delinquent was a member. The delinquent contended before the enquiry officer that the said Talraja was authorised to defend members of his union at domestic enquiries but the enquiry officer did not permit the delinquent to be represented and defended by the said Talraja since he was not a member of the recognised union or the unrecognised union functioning in theestablishment. Thereupon the delinquent did not participate in the enquiry and the enquiry officer concluded the enquiry ex parte. That led to the ultimate dismissal of the delinquent by an order dated January 28, 1981. The delinquent thereupon filed a complaint (ULP) No. 33 of 1981 in the Labour Court, Bombay making a grievance that the employer was guilty of unfair labour practice enumerated at Item l(f) of Schedule IV to the Act, in that, he was not allowed to be defended by a person of his own choice in violation of the principles of natural justice. Item l(f) of Schedule IV deals with discharge or dismissal of employees in utter disregard of the principles of natural justice in the conduct of a domestic enquiry. The Labour Court relying on22(ii) of the Act concluded that the delinquent was not entitled to be defended by Talraja who was not a member of either a recognised or aunion functioning within the undertaking of theThe Labour Court, therefore, came to the conclusion that the dismissal order did not suffer from any violation of the principles of natural justice and dismissed the complaint on June 30, 1982. The delinquent filed a Revision Application (ULP) No. 28 of 1982 in the Industrial Court, Bombay. The Industrial Court agreed with the view taken by the Labour Court and found no merit in the Revision Application and dismissed the same by its order dated June 14, 1983Thereupon the delinquent moved the High Court under Article 227 of the Constitution. The High Court, for the reasons extracted hereinabove, came to the conclusion that refusal to permit Talraja to defend the delinquent amounted to unfair labour practice within the meaning of Item l(f) of Schedule IV to the Act as it violated the principle of natural justice. The High Court, therefore, quashed the judgments of the authorities below and remitted the matter to the Labour Court for disposal in accordance with law after permitting both the sides to adduce evidence on their behalf. The High Court directed the Labour Court to determine if the charges of misconduct leveled against the delinquent were proved on merits on the evidence that may be placed before it and to dispose of the complaint of unfair labour practice on the findings so recorded latest by the end of December, 1991. It is the correctness of this order of the High Court which is impugned in this appeal.

Reasoning:
5. As pointed out earlier the complaint made to the Labour Court by the workman was that the employer was guilty of unfair labour practice, in that, his employment was terminated in utter disregard of the principles of natural justice in the conduct of the domestic enquiry by refusing to allow Talraja to defend him in the domestic enquiry conducted by the enquiry officer. The question is whether the enquiry officer was justified in refusing to permit Talraja to defend the delinquent in the enquiry conducted by him.6. It is clear from the scheme of the Act that with a view tocollective bargaining in certain undertakings, the concept of recognition of trade unions was introduced and certain obligations/rights came to be imposed/conferred on the recognised unions. Certain powers have also been conferred on unrecognised unions by the Act. Clause (d) of(1) of Section 20 states that such officers, members of the staff and members of a recognised union as may be authorised, shall have a right to appear on behalf of any employee or employees in any domestic or departmental inquiry held by an employer. Section 21 says that no employee in anto which the provisions of the Industrial Disputes Act applies, shall be allowed to appear or act or be allowed to be represented in anyto unfair labour practices specified in items 2 and 6 of Schedule IV to the Act; except through a recognised union. The proviso clarifies that in the absence of a recognised union, the employee may himself appear or act in any proceeding relating to any such unfair labour practices.(2) of that section further provides that no employee to which the provisions of the Bombay Industrial Relations Act applies shall be allowed to appear or act or be allowed to be represented in any proceeding referred to in(1) except through representatives of employees entitled to appear under Section 30 of the said Act. Section 30 of that Act specifies theof employees who shall be entitled to appear or act on behalf of thetwo items would not necessitate any domestic or departmental enquiry although a complaint in regard to such unfair labour practices can be envisaged under Section 28 of the Act. In the case of employees governed by the Industrial Disputes Act, only the recognised union can represent them if the complaint is in regard to the unfair labour practices stated in the said two entries and in the case of employees who are governed by the Bombay Industrial Relations Act, only the representatives specified in Section 30 of the said Act can represent the employees if the alleged unfair labour practices relate to the said two entries. Thus while Section 20(1)(d) confers a right on the authorised officers,and members of the recognised union to represent a delinquent in any domestic or departmental inquiry held by the employer, in the case of unfair labour practices falling within items 2 and 6, the right is further restricted, in that, in the case of employees governed under the Bombay Industrial Relations Act only thosementioned in Section 30 of that Act will be entitled to represent while employees governed by the Industrial Disputes Act would have to appear in person and conduct the proceeding relating to such unfair labour practices in the absence of a recognised union. In the case of aners and members of the union authorised by the State Government shall have a right to appear on behalf of any employee in domestic or departmental enquiry held by the employer. The expressionshave been defined in Sections 3(17) and 3(5), respectively. It will thus be seen that in the case of an employee facing a domestic or departmental enquiry, officers, officeor members of a recognised or unrecognised union may appear and act on behalf of the delinquent provided they are authorised by the StateIn the present case it is not in dispute that Talraja claimed to be an office bearer of a trade union which did not have employees working in theestablishment (except the delinquent) as its members. Since Talraja was not authorised by the State Government he could not represent the delinquent at the domestic or departmental enquiry under Section 22(ii) and hence the Enquiry Officer was justified in law in refusing him permission to represent the delinquent.The doctrine of natural justice embodies two principles, namely, (i)can be a Judge in his own cause, and (ii) a judicial orTribunal ought not and shall not condemn any person unheard. In the present case we are not concerned with the first principle and must, therefore, confine ourselves to the second which recognises the right to be heard. The second principle envisages that the right to be heard in order to be effective must be preceded by notice as to the exact charge which a delinquent is called upon to meet. Does then the right to be heard include the right to be represented through Counsel or agent of the choice of the delinquent? If a Domestic Tribunal refuses permission to a delinquent appearing before it to be represented by an agent would that amount to infringement of the rule of natural justice? There can be no doubt that a delinquent must be given an opportunity of presenting his case in such way suitable to the character of the enquiry which would ensure a fair hearing resulting in fair dispensation of justice. But does that extend to the right to be represented through Counsel or agent is the question which we are called upon to answer.10. A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing based on the rule of natural justice. He may, therefore, feel that refusal to be represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily it is considered desirable not to restrict this right of representation by Counsel or an agent ofchoice but it is a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry. Representation through Counsel can be restricted by law as for example, Section 36 of the Industrial Disputes Act, 1947, and so also by Certified Standing Orders. In the present case the Standing Orders permitted an employee to beby a clerk or workman working in the same department as the delinquent. So also the right to representation can be regulated or restricted by statute. Such provisions in fact serve to underline the importance attached to the right to representation. In Maclean v. TheUnion, [(1929) 1 CH.D 602 at 621] Maugham, J., observed that Counsel have no right of audience before a Tribunal. However, in Pett v. Greyhound Racing Association Ltd., [(1963) 2 All. ER 545 (No. 1)=(1969) 1 Q.B. 125] the Court of Appeal was dealing with an appeal from an interlocutory injunctionthe Greyhound Racing Association Ltd. from holding an enquiry on the question whether drugs had been administered todog. The rules of the club to which the trainer had agreed did not prescribe the procedureto be followed at such an enquiry and did not exclude legal representation. The procedure in fact followed was to allow the trainer to be present, to hear the evidence and to question the witnesses. The trainer sought to be represented by Counsel and solicitor at the enquiry but the track stewards decided not to allow legal representation. On appeal from the grant of aninjunction restraining the enquiry from being held unless the right to representation was conceded, the Court of Appeal held that prima facie the trainer was entitled to an oral hearing and the enquiry being one of serious importance to him to be represented at it by Counsel and solicitor. The Court held that he was entitled not only to personally appear but also to appoint an agent on his behalf, and so was entitled to appoint Counsel and solicitor to represent him. Lord Denning, M.R. whilethat such a right may not be conceded in minor matters felt that since the enquiry was one of serious consequences to Pett. prima facie he was entitled to Counsel andcan, therefore, be seen that Lord Denning did not strictly adhere to the view expressed by him in Petts (No. 1) case. He felt that the right to representation depends on the discretion of the Tribunal which must be genuinely exercised and explained. Incase he had intervened because the Greyhound Racing Association Ltd. had developed an inflexible practice of refusing representation regardless of the seriousness and complexity of the charges levelled against a delinquent. In Regina v. Race Relations Board Ex parte Selvarajan, [(1975) 1 W.L.R. 1886] the question of legal representation though not strictly in issue was discussed by Lord Denning M.R. generally and it was observed that there was a duty to act fairly although each body could lay down its own procedure. He also observed that what fairness requires would depend on the nature of the investigation and the consequences it may have on persons affected by it, thereby keeping open for Courts in any particular case to grant the right of legal representation Again in Maynard v. Osmond, [(1977) Q.B. 240] a police constable claimed a right to be legally represented when appearing before his chief constable This was spurned by the Court of Appeal which held that the Police (Discipline) Regulations, 1965 made under the Police Act, 1964 expressly provided for representation only by another policeman. Lord Denning M.R. held that the regulations were entirely fair since the prosecution was presented by a police officer not a lawyer, and the delinquent could be effectively represented by another police officer because of his knowledge of the inner working of the police force.11. From the above decisions of the English Courts it seems clear to us that the right to be represented by a Counsel or agent ofown choice is not an absolute right and can be controlled, restricted or regulated by law, rules or regulations. However, if the charge is of a serious and complex nature, therequest to be represented through a Counsel or agent could beCourt concluded that in the concerned rules no provision was made that the person against whom an enquiry is held may be represented by anyThis Court further held that when the general practice adopted by domestic Tribunals is that the delinquent must conduct his own case, it is difficult to accept the submission that natural justice demands that in such enquiries the workman should be represented by a member of his union. If any enquiry is not otherwise fair, the workman concerned can always challenge its validity in an industrial dispute. This Court, therefore,that a workman against whom an enquiry is being held by thehas no right to be represented at such enquiry by a representative of his union though of course an employer in his discretion can and may allow his employee to avail himself of such assistance.14. In the second case also the management of Brooke Bond (P) Ltd. framed charges against two workmen involving gross negligence of duty and moral turpitude and ordered separate enquiries against them. TheSubba Raman appeared before the enquiry officer with Counsel and insisted that he should be permitted to be represented by Counsel. The enquiry officer refused this request whereupon the workman withdrew from the enquiry. The enquiry was then concluded ex parte resulting in theof the workman. In the case of the other workman what happened was that he appeared at the enquiry with an outsider and insisted that he should be permitted to represent him at the enquiry. He was told that no outsider would be allowed to do so whereupon he too withdrew from the enquiry. The enquiry proceeded ex parte and ended in his dismissal. This Court relying on the decision incase concluded that the workmen had no right to be represented at such enquiry by a Counsel or by anagent and the refusal of the enquiry officer to permit suchat the domestic enquiry did not offend the rule of natural justice.In the third case the management. The Dunlop Rubber Company, dismissed certain workmen after a domestic enquiry finding them guilty of ‘goaction. An industrial dispute was raised wherein the Industrial Tribunal found that the dismissal of the workmen could not be sustained since there was denial of natural justice inasmuch as the workmen were not allowed to be represented by a person of their choice. On the Tribunal setting aside the orders of dismissal the company appealed to this Court by special leave. This Court held that there was no denial of natural justice because the workman had asked for being represented by a member of a union which was not recognised since the Standing Orders clearly provided that only a representative of a registered and recognised union could assist the workmen in the enquiry; there was no absolute right to representation as such except that recognised by the Standing Orders.15. It is, therefore, clear from the above case law that the right to be represented through Counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through Counsel or agent unless the lawconfers such a right. The requirement of the rule of natural justice insofar as theright of hearing is concerned, cannot and does not extend to a right to be represented through Counsel or agent. In the instant case theright to representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer,or a member of the Union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with dispatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department orin which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice.