1. Does right of representation by a co-worker in a departmental enquiry emanate from the principles of natural justice in the facts and circumstances of these cases is a narrow yet an important common point which falls for consideration in these two matters.
2. The facts and circumstances are these: The respondent - Bhaiyya Kothe (W.P. No. 2294 of 1982) and respondent - Ashok Vighre (W.P. No. 2296 of 1982) were in the employment of the petitioner Krushi Utpanna Bazar Samiti and had put in nearly four years of service when some serious charges of gross misconduct, insubordination, misbehaviour, unlawful trade union activities etc. were levelled against them. The charge-sheets which are followed by the statements of allegations in details alleged that the respondents:
(i) remained absent merely after applying for leave at the eleventh hour and without getting prior sanction and behaved in a disorderly and indisciplined manner and shouted slogans.
(ii) did not take cognizance of the indiscipline of their subordinates and remained absent from the meetings of the Committees.
(iii) behaved rudely with the superiors.
(iv) wrongly and irresponsibly entrusted the regular work to the daily rated workers.
The respondents gave their replies denying the charges and alleging intention of victimisation on account of trade union activities. Shri B.G. Mathankar, a legal practitioner, was appointed as an Enquiry Officer and Secretary of the petitioner was appointed as the Presenting Officer. The respondents submitted a request in writing seeking permission to be represented either by a helper or by a counsel. On the date the application was presented, it was rejected on the ground that the case did not involve any complicated question of law and facts and that granting of the application would only delay the proceedings. On the next date of hearing the request to engage a helper was repeated. It was also turned down holding that there was no sufficient ground to grant it. Thus, the two enquiries proceeded in which five witnesses each were examined. The then Secretary was also one of the witnesses in one of the enquiries. Respondent - Ashok Vighre did not cross-examine the witnesses whereas some attempt to cross-examine was made by respondent - Bhaiyya. As a result of this departmental inquiry which had 4-5 sittings and which went on for nearly three months, the Enquiry Officer submitted a report that the charges were proved. This report of the Enquiry Officer was accepted by the Management, Second show cause notice as to why the punishment of dismissal should not be passed was issued and ultimately, the respondents were dismissed from service some time in December 1979 and February 1980.
3. The respondents lodged a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('The Act of 1971' for short) alleging various unfair labour practices mentioned in Schedule IV of the Act of 1971. They included lack of opportunity to cross-examine the witnesses and to lead evidence, refusal to supply relevant documents and refusal of the permission to be represented by a co-worker. The matter was set down for decision on the preliminary grounds about correctness and legality of the procedure adopted in departmental enquiry. The First Labour Court, Nagpur, before whom ,the complaints were presented, came to the conclusion that the respondents had failed to prove the various unfair labour practices excepting about refusal of representation by a co-worker. Consequently, it recorded findings that the enquiries held against the complainants were not legal and gave liberty to the management to prove misconduct before the Labour Court. These preliminary findings were challenged by the management before the Industrial Court, Nagpur, which by order dated October 13, 1982 maintained the preliminary order. Only the first part of the order holding that the unfair labour practice was practised is challenged in these two petitions.
4. As there is no dispute that the unfair labour practice, if at all, falls only under item (f) of Schedule IV, it would be worthwhile noticing the same-
(f) In utter disregard of the principle of natural justice in the conduct of domestic enquiry or with undue haste.
Now it is apparent that the charges were many and of varied nature though grouped in only four paragraphs. The very nature of the charges indicates in no uncertain terms that their ramifications could properly be settled only by full disclosure in leading evidence and its testing by cross-examination. The respondents obviously are inexperienced in the legal field and it will be too much to assume that they had the capacity of assessing the impact of the evidence and to effectively cross-examine the witnesses, some of them were bound to be their superiors. The respondents knew very well that the adverse findings were bound to affect not only their source of livelihood but also their reputation. The stakes involved were too heavy to have dispassionate view of the matter after deliberations. The Enquiry Officer was a legal practitioner and the Presenting Officer was a high official of the rank of a Secretary. It is not always that enquiry officer in such departmental enquiries takes a dispassionate and independent view of the matter. The battle between the management and a worker, by and large, is always unequal. This balance of inequality can be tilted at least to some extent in favour of the handicapped worker in case help at least by a co-worker is permitted in the conduct of an enquiry. This is all that the respondents had ultimately craved for. One of the reason upon which the request was rejected was the wrong assumption that no complicated questions of fact and law were involved. Delay was the other reason. None can dispute the necessity of speedy disposal of a departmental enquiry but not at the cost of justice and fair trial. Granting of hearing in a departmental enquiry is not either a ritual or an empty formality. The opportunity must be real and effectual. If it is not, there is a violation of principles of natural justice. In this background, it is apparent that no proper hearing was granted to the respondents in a departmental enquiry, and thus the dismissals were in utter disregard of the principles of natural justice in the conduct of domestic enquiry.
5. Shri Deshpande, the learned Counsel for the petitioner, invited my attention to the decision in the case of N. Kalindi v. Tata Locomotive and Engineering Co. Ltd., Jamshedpur : (1960)IILLJ228SC in support of a proposition that h(c) canvassed that right of representation does not form part of the principle of natural justice. The following observations were pointedly brought to my notice (at pp. 915, 916):
When the general practice adopted by domestic tribunals is that the person accused conducts his own ease, it is not possible to accept an argument that natural justice demands that in the case of enquiries into a charge-sheet of misconduct against a workman he should be represented by a member of his Union.
It will be proper to notice the background against which that decision was given, lest, first impression about the above dictum goes wrong. The workers insisted on being represented by representative of Jamshedpur Mazdoor Union at the enquiry. The Management rejected the request of representation by that Union but informed the workers that if they so desired, they could be represented by a co-worker from their own department. Thus the question that fell for consideration before the Supreme Court was whether there was a right to insist on representation through a particular union. This point was negatived. What is pertinent is the readiness of the management to permit representation by a co-worker. Thus the ratio of this decision will have no application to the point involved. The case of Brooke Bond India (Private) Ltd. v. Subba Raman (1961) 2 L.L.J. 417 and on which also strong reliance was placed is also about rejection of a request for representation either by a legal practitioner or by an outsider. In terms it is observed that the workers did not want to be represented by somebody from their union or a co-worker. As a necessary corollary it follows that if it was a case of that type different conclusion would have followed. In a sense, therefore, far from, supporting the petitioner, this decision supports the respondents. In the case of C.L. Subramaniam v. Collector of Customs, Cochin : (1972)ILLJ465SC what fell for consideration was the right of the worker to claim the representation by a legal practitioner on the theory of agency. That was a case of a Government servant who was governed in the matter of departmental enquiry by Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1967 framed under Article 309 of the Constitution, which permits the representation by any Government servant but does not permit the representation by a- legal practitioner by way of right. The theory of agency was not accepted by the Supreme Court in the face of the specific rule prohibiting representation by a legal practitioner. In terms the Supreme Court observed that it was not concerned in that case with the principles of natural justice.
6. M/s. Khan and Naukarkar, the learned Counsel for the respective respondents, invited my attention to the following observations in the case of The Dunlop Rubber Co. (India) Ltd. v. Their Workmen : (1965)ILLJ426SC :
7. In this connection, we have repeatedly emphasised that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it Is desirable that at such, an enquiry the employees should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request.'
8. It is true that in that case the right of the worker to be represented by a representative of an unrecognised union and thereby indirectly seeking the recognition of the Union in this manner was not upheld. However, right of representation by a co-worker is recognised in no unclear terms. The clear ratio of this decision is that in the absence of any contrary provision in the standing order or specific proper reason for the refusal of a representation by a co-owner, there is an inherent right of such representation, in every workman. Obviously, this is in recognition of the principles of natural justice. The clear verdict of the Supreme Court, therefore, is that such right of representation does not depend upon a positive provision in the standing order permitting such a course. My attention was invited to the recent decision of the Supreme Court in the case of Board of Trustees, Port of Bombay v. Dilipkumar : (1983)ILLJ1SC in which though in altogether different settings, the importance of right of representation in a domestic enquiry in the modern and changed times has been emphasized. That case dealt with the question of right of being represented by a legal practitioner in the event of the management being represented by a legal practitioner, in the face of discretion being given to the management in the matter in the standing orders. The Supreme Court confirming the decision of this Court came to the conclusion that if management was represented by a legal practitioner, similar representation to the workers could not be justifiably refused and such a refusal amounts to violation of principles of natural justice.
9. One of the points which was hotly debated before me was whether the model standing orders framed under Section 35(5) of the Bombay Industrial Relations Act, 1946 which in terms provide for an opportunity to be defended by operator working in the same department or by a representative under Section 30 of the said Act. The answer to this point which was held in favour of the respondents by the Labour Court depends upon the larger question as to whether or not the petitioners' establishment is governed by the Bombay Industrial Relations Act. I consider this debate to be wholly unnecessary in the view I have taken of the matter that granting of the request of representation by a co-worker does not at all depend upon a positive provision in the standing order. Chapter V of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967, which according to the respondents governs the domestic enquiry is silent about representation and does not contain any such prohibition.
10. It is argued on behalf of the respondents that mere theoretical treatment to the principle of natural justice is of no use unless actual prejudice is demonstrated by its violation. I have already demonstrated how considering the nature of the charges, the type of the evidence, the persons involved and all other attendant circumstances the representation by a co-worker was necessary. The prejudice is apparent. In one enquiry there has been no cross-examination at all and in the other the cross is good for nothing.
11. To conclude, the petitions are dismissed and the rules are discharged in the above terms. In view of the nature of the controversy, I propose to make no order as to costs. The papers be forthwith sent back to the Labour Court for proceeding with the complaints.