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Standard Pottery Works Vs. Standard Pottery Works Employees' Union and Anr. (17.02.1981 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1981)IILLJ280Ker
AppellantStandard Pottery Works
RespondentStandard Pottery Works Employees' Union and Anr.
Cases Referred & Co. v. The Management
Excerpt:
.....supreme court in the aforesaid decision also said that it is necessary to remember that if the domestic enquiry is not otherwise fair, the workman concerned can challenge its validity in an industrial dispute. in such enquiries fairly simple question of fact as to whether certain acts of misconduct were committed by a workman are not fall to be considered and the workman is best suited to conduct the case. it was also noticed that when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be according to the supreme court that was why rule 15(5) has provided for representation of a government servant charged with dereliction of duty or with contravention of the rule by another..........forth. in such cases when the complaint before a competent tribunal or court is that the domestic-enquiry-tribunal denied the accused representation through another, it is a wrong approach to examine such complaint on the ass motion that the accused was as of right entitled to be represented at the domestic enquiry through another. the superior tribunal or court in deciding such a complaint shall itself take into account all the facts and circumstances of the case, and with reference to those facts and circumstances decide as to whether in denying representation the domestic enquiry-tribunal exercised its discretion improperly. 15. there was some argument on behalf of the second respondent that this writ petition is not maintainable for the reason that it is belated and the decision.....
Judgment:

George Vadakkal, J.

1. This case decided on 10th February, 1981 without hearing the learned Counsel for the first respondent as he was absent and since no representation on his behalf was made by any one, has been reopened and reheard pursuant to the order allowing C.M.P. No. 2889 of 1981 praying that the case may be reheard and decided afresh,

2. As per Ext. P3 order the second respondent, the Labour Court, Ernakulam, took the view that the domestic enquiry held into the charge of misconduct alleged and levelled against one Sri P.S. Velappan, whose cause was espoused by the first respondent-union before the second respondent, was not proper. So holding, the second respondent posted the case, I. D. 180 of 1979. for fresh evidence before that Court. The petitioner herein impugns the finding as aforesaid entered by second respondent on the preliminary issue as to whether the domestic enquiry was proper or not,

3. The only reason stated by second respondent for holding that the domestic enquiry is vitiated and that it is improper is that M. W. 1 who conducted the domestic enquiry, did not allow the concerned workman to have the assistance of a co-worker or some one else at the domestic enquiry. According to the second respondent, such conduct on the part of M.W. 1, an advocate, who conducted the domestic enquiry 'amounted to a violation of the accepted . principles of natural justice'. The second respondent has made it clear in Ext. P3 order that for 'this reason alone the enquiry has to be held invalid'.

4. It has also to be noticed that (as is seen from Ext. P 3 order) the Labour Court appears to have taken the view that the management had engaged a presenting officer. The Labour Court came to this conclusion for the reason (as stated by that Court) that ''witnesses examined on the side of the management were all cross-examined elaborately'. According to the Labour Court this could have happened only if there was a presenting officer for the management, as otherwise, according to the Labour Court such cross-examination of those witnesses examined on the part of the management must have been made by the enquiry officer himself. It should be stated that the witnesses examined on the part of the management could not have been cross-examined by the presenting officer, if there was one, and, therefore, it has no relevance as to the question whether there was a presenting officer to present the management's case or not. In fact, the Labour Court earlier in Ext. P 3 order noticed that the concerned workman cross-examined all the witnesses examined on the side of the management and that he (the workman) examined several witnesses on his side.

5. The second respondent-Labour Court proceeded on the basis that the domestic enquiry conducted is defective and improper for the sole reason that denial of the request made by the workman concerned to ! permit him to be assisted by two persons 'amounted to a violation of the accepted principles of natural justice'. (emphasis supplied). The copy of the request made by the workman concerned seeking permission of the domestic enquiry officer to have the assistance of two persons specified by the workman in the matter of the conduct of domestic enquiry is Ext. P1. By Ext. P 1 the workman sought for permission as aforesaid without stating any reason therefor or explaining as to how the workman was not in a position to conduct the enquiry by himself on his behalf. It is also necessary to mention that the workman required the assistance of two persons mentioned therein. This was rejected by M.W. 1, who conducted the domestic enquiry as per Ext. P 2 proceedings. The reason stated for rejection is that the management has not engaged any presenting officer and that no complicated issues of fact are required to be proved in the enquiry. According to the Labour Court, as a matter of fact, the management had employed a presenting officer and, therefore, the rejection of Ext. P1 request by the domestic enquiry officer amounted to denial of opportunity to the worker to defend his case properly. The facts from which the inference as aforesaid has been drawn by the second respondent (as stated by that Tribunal in Ext. P3 order; would not lead to that conclusion.

6. Arguments were advanced before me to persuade me to hold that in a domestic enquiry concerning the misconduct of a workman, he is as of right entitled to be represented through any one of his choice.

7. In N. Kalindi v. Tata Locomotive Engineering Co. 1960-II L.L.J. 228, the Supreme Court said:

Our conclusion, therefore, is that a workman against whom an enquiry is being held by the management has 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.

It was pointed out by the Supreme Court that the first inclination would be to think that a fair enquiry demands that the person accused of an act should have the assistance of some person; but in domestic enquiry only fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not fall to be considered ; and straight forward questioning by a person of fair intelligence and knowledge of conditions prevailing in the industry would ordinarily help to elicit the truth; therefore, the employee cannot insist upon as of right that at the enquiry he be represented and assisted by another. The Supreme Court observed that 'it may often happen that the accused workmen will be best suited, and fully able to cross-examine the witnesses who have spoken against him and to examine witnesses in his favour'. The Supreme Court in the aforesaid decision also said that it is necessary to remember that if the domestic enquiry is not otherwise fair, the workman concerned can challenge its validity in an industrial dispute.

8. The principle of law stated in Kalindi's case was reitereated in the Dunlop Rubber Co. v. Workmen 1965-I L.L.J. 426. The Supreme Court in that case said that 'the Tribunal was also wrong in thinking that there was a denial of natural justice because the workmen were refused the assistance of a representative of their own union.' The decisions in Kalindi and Ors. v. Tata Locomotives 1960-II L.L.J. 228 and Brooke Bond India (P) Ltd. v. Subba Raman 1961-II L.L.J. 417, were cited as authorities which lay down the principle 'that there is no right to representation as such unless the company by its Standing Orders recognises such a right.' It was also stated in the aforesaid decision that 'refusal to allow representation by any union unless the Standing Orders confer that right does not vitiate the proceedings'. (See page 430).

9. In Brooke Bond India Ltd. v. Subba Raman 1961-II L.L.J. 417, the Supreme Court followed its earlier decision in Kalindi and Ors. v. Tata Locomotives and Engineering Co. Ltd. 1960-II L.L.J. 228. The said decision also is to the effect that refusal to allow a counsel or an outsider to represent the employee is no reason to hold that the domestic enquiry was not fair or is vitiated. The next decision of the Supreme Court is Subramaniam v. Collector of Customs 1972-I L.L.J. 465. In this case, relying on the decision of the Court of Appeal in Pett v Greyhound Racing Association [1968] 2 All Eng. Reports 545, it was argued that what one could himself do, he could get it done by an agent of his, and that, therefore, the employee is, as of right, entitled to be represented in a domestic enquiry through a legal practitioner acting for him who would only have been his agent. Therein that Court said as follows:

The rule laid down in Pett's case (supra) has not commended itself to this Court. In Kalindi v. Tata Locomotive and Engineering Co. Ltd. 1960-II L.L.J. 228, a question arose whether in an enquiry by management into misconduct of a workman, the workman was entitled to be represented by a representative of the union. Answering this question this Court observed that a workman against whom an enquiry is being held by the management has no right to be represented at such an enquiry by the representative of the union though the employer in his discretion can and may allow him to be so represented. In such enquiries fairly simple question of fact as to whether certain acts of misconduct were committed by a workman are not fall to be considered and the workman is best suited to conduct the case. Ordinarily, in enquiries before domestic Tribunals a person accused of any misconduct conducts his own case and so it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of his union. The same view was taken by this Court in Brooke Bond India (Private) Ltd. v. Subba Raman 1961-II L.L.J. 417 That view was reiterated again in Dunlop Rubber Co. v. Workmen 1965-I L.LJ. 426.

Subramaniam's case arose with reference to the disciplinary proceedings initiated against a person holding a civil post. The Supreme Court noticed that the relevant rule governing the disciplinary proceedings, namely, Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1967 prohibits the concerned Government servant from engaging a legal practitioner for the purpose of defending himself unless 'the disciplinary authority having regard to the circumstances of the case so permits.' The Government servant's request for engaging a counsel was rejected by the Disciplinary Authority. The Supreme Court pointed out that Rule 15(5) of the Rules mentioned above is a mandatory rule, that the rule regulates the guarantee given to Government servants under Article 311 and that Government servants by and large have no legal training. It was also noticed that when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be According to the Supreme Court that was why Rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant and in appropriate cases by a legal practitioner. In that background the Supreme Court said that the rejection of the concerned Government servant's request to have the assistance of a legal petitioner amounted to denial of reasonable opportunity to defend himself. The Supreme Court in the decision mentioned above stated that the rule in the Kalindi's case has no application to that case.

10. The learned Counsel for the first respondent relied on a decision of this Court in support of the contention advanced by him to sustain Ext. P3 order. The decision is Kavitha Movie House v. P.M. Mary and Anr. 1979-I L.L.J. 10. This Court therein took the view that on the facts and in the circumstances of that case it cannot be said that the management has exercised its discretion properly in refusing the request made by the concerned employee for assistance by a lawyer in the conduct of the domestic enquiry. In so doing, this Court took into account the fact that the concerned worker therein was not a member of a union and was 'an illiterate sweeper-woman'. For these reasons this Court dismissed the writ petition filed before this Court impugning an order passed under Section 18(2) of the Kerala Shops and Commercial Establishments Act, 1960. The Appellate Authority under the aforesaid Act had held that the misconduct alleged against the concerned worker has not been proved either in a domestic enquiry or before the Appellate Authority. This Court in the aforesaid case seems to have taken the view that the principle stated by Lord Denning in Pen's case [1968] 2 All. Eng. Reports 545, would be attracted to domestic enquiries.

11. Pett's action concerned an enquiry proposed to be conducted by the National Greyhound Racing Club as to whether a dog be entered to run in an open race was drugged. Pett's solicitor also went with him to attend the enquiry but the club did not allow the solicitor to be present at the enquiry. The enquiry was, however, adjourned. Pett then brought the action for a declaration that the club was acting ultra vires in refusing to allow Pett to appear and to be heard by counsel at the enquiry. Pett also moved for an interlocutory order of injunction restraining the club from holding the enquiry unless Pett was allowed to appear and be represented by counsel at any such enquiry. This interlocutory application was allowed. This order was appealed against before the Court of Appeal. In Pett v. Greyhound Racing Association Ltd. [1968] (2) All Eng. Reports 545. Taking the view that 'It would be most unfortunate if the inquiry should be held without Mr. Pett being legally represented; and then later on at the trial it was found that the proceedings had been quite irregular and were upset, this appeal was dismissed. (See Pett v. Greyhound Racing Association, Lord Denning in this context in that case said that the plaintiff has a common law right to do by an agent or his choice that which he had a right to do in person. However, Lyell, J., who subsequently tried the action dismissed it. He disagreed with the above said proposition. That decision is Pett v. G.R.A. Ltd. [1970] 1 Q.B. 46 Lyell, J., preferred to rely on the principle stated by the Privy Council in University of Ceylon v. Fernando (1960) 1 W.L.R. 223 'that the question whether the requirements of natural justice have been met by the procedure adopted in any given case must depend to a great extent on the facts and the circumstances of the case in point. Though an appeal therefrom was preferred before the Court of appeal, since by that time the club had amended its rules whereby one could be represented at such an enquiry that appeal was by consent dismissed.

12. In Enderby Football Club v. P.A. Ltd. [1970] 3 W.L.R. 1021 (C.A.) Lord Denning considered the point again and said (at page 1025; as follows:

The case thus raises this important point: Is a party who is charged before a domestic tribunal, entitled as of right to be legally represented? Much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal They are masters of their own procedure; and. if they, in the proper exercise of their discretion, decline to allow legal representation the Courts will not interfere. Such was held in the old days in a case about Magistrates; see Collier v. Ricks [1831] 2 B & Ad. 663. It is the position today in the tribunals under the Tribunals and Inquiries Act, 1921. I think the same should apply to domestic Tribunals, and for this reason in many cases it may be a good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation. Justice can often be done in them better by a good layman than by a bad lawyer. This is especially so in activities like football and other sports, where no points of law are likely to arise, and it is all part of the proper regulation of the game. But I would emphasise that the discretion must be properly exercised The tribunal must not fetter its discretion by rigid bonds. A domestic tribunal is not at liberty to lay down an absolute rule: 'We will never allow anyone to have a lawyer to appear for him'. The tribunal must be ready, in a proper case, to allow it. That applies to any one in authority who is entrusted with a discretion.

* * *

That is the reason why this Court intervened in Pett v. Greyhound Racing Association Ltd. [1968] 2 All E.R. 545, Mr. Pett was charged with doping a dog...a most serious offence carrying severe penalties. He was to be tried by a Domestic Tribunal. There was nothing in the rules to exclude legal representation, but the Tribunal refused to allow it. Their reason was because they never did allow it. This Court thought that that was not a proper exercise of their discretion. Natural justice required that Mr. Pett should be defended, if he so wished, by counsel or solicitor. So we intervened and granted an injunction.

Subsequently Lyell, J., thought we were wrong. He held that Mr. Pett had no right to legal representation: see Pett v. Greyhound Racing Association (1970) 1 Q.B. 46. But I think we were right. May be Mr. Pett had no positive right, but it was a case where the Tribunal in their discretion ought to have allowed it. And on appeal the parties themselves agreed it.

13. Though in Pett's case [1968] 2 All E.R. 545, Lord Denning took the view that the principle -

that subject to certain well known exceptions every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right,' governs domestic enquiries as well.

In E.T. Football Club Ltd. case [1970] 3 W.L.R. 1021, he pointed out that 'when the rules say nothing, then the party has no absolute right to be legally represented' and that ''it is a matter for the discretion of the Tribunal'. As regards his earlier decision in Pett's case he said; 'May be Mr. Pett had no positive right, but it was a case where the Tribunal in their discretion ought to have allowed it'. This Court in Kavitha Movie House v. P.M. Mary and Anr. 1979-I L.LJ. 10 at page 15 also has taken the same view, viz., when rules governing the domestic enquiry are silent on the question of representation in those proceedings, it is a matter of discretion and not one of positive or absolute right- This Court therein said:

After all the Supreme Court itself has indicated that the management has a discretion to allow the workman to engage the lawyer. That is a discretion the management has to exercise in a spirit of fairplay, and by and large to be in consonance with the rules and principles of natural justice which may assume various forms and shapes depending upon the context in which it comes into play.

14. The doctrine that the parties be given adequate notice and opportunity to be heard (audi alteram partam) requires that (1) the accusation is made known to the accused; (2) he is given an opportunity of defence by stating his case; and (3) that the Tribunal acts in good faith. Where there are no rules governing the procedure to be followed in a domestic enquiry enabling the accused to be represented by another at such enquiry or prohibiting him to be represented by another, the question of his representation is a matter of discretion of the Tribunal holding the domestic enquiry. The accused cannot as of right claim that he be represented by another at such enquiry. The Tribunal should consider his request to be represented at such an enquiry with reference to the facts and circumstances of the case, the nature of the enquiry, the subject - matter under enquiry, the person who is going to be engaged as his representative, a legal practitioner or not and the person who is holding the enquiry and so forth. In such cases when the complaint before a competent Tribunal or Court is that the domestic-enquiry-tribunal denied the accused representation through another, it is a wrong approach to examine such complaint on the ass motion that the accused was as of right entitled to be represented at the domestic enquiry through another. The superior Tribunal or Court in deciding such a complaint shall itself take into account all the facts and circumstances of the case, and with reference to those facts and circumstances decide as to whether in denying representation the domestic enquiry-tribunal exercised its discretion improperly.

15. There was some argument on behalf of the second respondent that this writ petition is not maintainable for the reason that it is belated and the decision concerns a preliminary issue. So far as the question of delay is concerned, it is brought to my notice by the learned Counsel for the petitioner that though Ext. P 3 decision was rendered on 21-7-1980, a certified copy thereof was obtained by the petitioner on 10-10-1980 The original petition itself was filed on 12-12-1980. It cannot be said that there is any inordinate delay or laches on the part of the petitioner in filing this writ petition.

16. The learned Counsel for the first respondent relied on the decision of the Supreme Court in Cooper Engineering Ltd. v. V.P. Mundhe 1975-II L.L.J 379 in support of the contention that a decision on the preliminary issue as to whether a domestic enquiry is vitiated and defective by an Industrial Tribunal is not amenable to the writ jurisdiction of this Court, The Supreme Court in the aforesaid decision said that 'it will be also legitimate for the High Court to refuse to intervene at that stage' - the above statement was made with reference to the decision on the preliminary issue mentioned above. However, I am not inclined to read into the aforesaid passage any prohibition debarring this Court from exercising its writ jurisdiction. The Supreme Court in the aforesaid case has made it clear that the said observations have been made in the anxiety that there may be no inordinate delay in industrial adjudication. It appears to me that it should also be taken into account that the decision on the preliminary issue mentioned above is a matter concerning the jurisdiction and that further jurisdiction of the Industrial Tribunal depends upon the decision on the said preliminary issue. The following is the 6th proposition laid down in paragraph 29 in Workmen of . F.T & Co. v. The Management 1973-I L.LJ. 278.

The Tribunal get jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

In view of what is stated hereinbefore, I am not inclined to accept the contention advanced as aforesaid by the learned Counsel for the first respondent.

17. The decision of the second respondent-Tribunal, a copy whereof is marked herein as Ext. P3, cannot be sustained, in so far as the same is rested on a statement of law which is unsustainable and on a conclusion which is not supported by the facts relied on in that behalf by the second respondent. Tribunal. In that view the order has to be quashed and the matter has to be directed to considered afresh by the second respondent-Tribunal. That Tribunal would be free to be decided the issue referred to that Tribunal including the preliminary issue in the light of what is stated herein before and in accordance with the principles of law governing the same.

18. This writ petition is allowed to the above extent. There will be no order as regards costs.


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