absolute right of representation to an employee in
domestic enquiries as part of his right to be heard and
that there is no right to representation by somebody else
unless the rules or regulation and standing orders, if
any, regulating the conduct of disciplinary proceedings
specifically recognize such a right and provide for such
representation (See N. Kalindi v. Tata Locomotive &
Engg. Co. Ltd. (AIR 1960 SC 914), Dunlop Rubber Co.
(India) Ltd. v. Workmen (AIR 1965 SC 1392), Crescent
Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993
(2) SCC 115), and Indian Overseas Bank v. Indian
Overseas Bank Officers' Association and Another
(2001(9) SCC 540).
8. “27. The basic principle is that an employee
has no right to representation in the departmental
proceedings by another person or a lawyer unless the
Service Rules specifically provide for the same. The
right to representation is available only to the extent
specifically provided for in the Rules. For example, Rule
1712 of the Railway Establishment Code provides as
under:
"The accused railway servant may present his
case with the assistance of any other railway
servant employed on the same railway
(including a railway servant on leave
preparatory to retirement) on which he is
working."
28. The right to representation, therefore, has been
made available in a restricted way to a delinquent
employee. He has a choice to be represented by
another railway employee, but the choice is restricted to
the Railway on which he himself is working, that is, if he
is an employee of the Western Railway, his choice
would be restricted to the employees working on the
Western Railway. The choice cannot be allowed to travel
to other Railways.
29. Similarly, a provision has been made in Rule 14(8)
of the Central Civil Services (Classification, Control &
Appeal) Rules 1965, where too, an employee has been
given the choice of being represented in the disciplinary
proceedings through a coemployee.
30. In N. Kalindi's case (supra) a threeJudge Bench of
this Court observed as under : (SCR pp. 40910)
"Accustomed as we are to the practice in the
courts of law to skilful handling of witnesses by lawyers
specially trained in the art of examination and crossexamination
of witnesses, our first inclination is to think
that a fair enquiry demands that the person accused of
an act should have the assistance of some person, who
even if not a lawyer may be expected to examine and
crossexamine witnesses with a fair amount of skill. We
have to remember however in the first place that these
are not enquiries in a court of law. It is necessary to
remember also that in these enquiries, fairly simple
questions of fact as to whether certain acts of
misconduct were committed by a workman or not only
fall to be considered, and straightforward questioning
which a person of fair intelligence and knowledge of
conditions prevailing in the industry will be able to do will
ordinarily help to elicit the truth. It may often happen
that the accused workman will be best suited, and fully
able to cross examine the witnesses who have spoken
against him and to examine witnesses in his favour.
It is helpful to consider in this connection the
fact that ordinarily in enquiries before domestic tribunals
the person accused of any misconduct conducts his own
case. Rules have been framed by Government as
regards the procedure to be followed in enquiries
against their own employees. No provision is made in
these rules that the person against whom an enquiry is
held may be represented by anybody else. When the
general practice adopted by domestic tribunals is that
the person accused conducts his own case, we are
unable to accept an argument that natural justice
demands that in the case of enquiries into a chargesheet
of misconduct against a workman he should be
represented by a member of his Union. Besides it is
necessary to remember that if any enquiry is not
otherwise fair, the workman concerned can challenge its
validity in an industrial dispute.
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."
31. In another decision, namely, Dunlop Rubber
Company's case (supra), it was laid down that there was
no right to representation in the disciplinary proceedings
by another person unless the Service Rules specifically
provided for the same.
32. The matter again came to be considered by a
threeJudge Bench of this Court in Crescent Dyes's
case (supra), Ahmadi, J. (as he then was) in the context
of Section 22(ii) of the Maharashtra Recognition of
Trade Unions and Unfair Labour Practices Act, 1971, as
also in the context of domestic enquiry, upheld the
statutory restrictions imposed on delinquent's choice of
representation in the domestic enquiry through an agent.
33. The earlier decisions in N. Kalindi's case
(supra); Dunlop Rubber Company's case (supra) and
Brooke Bond India (P) Ltd. v. Subba Raman (S.) and
another, (1961 (2) LLJ417), were followed and it was
held that the law in this country does not concede an
absolute right of representation to an employee as part
of his right to be heard. It was further specified that
there is no right to representation as such unless the
Company, by its Standing Orders, recognises such a
right. In this case, it was also laid down that a
delinquent employee has no right to be represented in
the departmental proceedings by a lawyer unless the
facts involved in the disciplinary proceedings were of a
complex nature in which case the assistance of a lawyer
could be permitted.
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NOS. 107/07 & 115/07.
LETTERS PATENT APPEAL NO. 107 OF 2007
IN WRIT PETITION NO. 2616 OF 1996
P.M. Ruikar Trust Yavatmal, Vs Punjaram Dharmaji Wagdarkar,
CORAM : B.R. GAVAI & P.N. DESHMUKH, JJ.
DATED : JANUARY 11, 2016.
Citation:2016(2) MHLJ783
1] These two appeals are filed by the employer as well as the
employee. L.P.A. No. 107/07 is filed by the employer Trust being
aggrieved by the judgment and order passed by the learned Single
Judge dated 21.12.2006 in Writ Petition No. 2616/96, thereby
allowing the appeal filed by the employee, setting aside the
termination and granting reinstatement with continuity and 25% of the
back wages from the date of his termination.
2] The employee has filed L.P.A. No. 115/07 being aggrieved
by the denial of 75% of the back wages and also some of the findings
as recorded by the learned Single Judge which according to him, are
against him. For the convenience, the parties hereinafter are
referred to as “the employer” and “the employee”.
3] The employee came to be appointed as Headmaster on
9.7.1983. He was confirmed on the said post from 1987. The
appointment of the employee as Headmaster was approved by the
Education Officer. The School was initially run on nogrants basis.
However, it started getting grants from 19911992. The employer
decided to conduct an enquiry against the employee and as such, by
a resolution passed by the management, his services came to be
suspended from 2.1.1993. At the conclusion of the departmental
enquiry, vide the order dated 30.5.1993 the services of the employee
were terminated. Being aggrieved thereby, the employee filed an
appeal before the learned School Tribunal, Amravati being Appeal
No. 97/93. The appeal was dismissed. Being aggrieved thereby, a
Writ Petition was filed before the learned Single Judge. The learned
Single Judge by the impugned order allowed the appeal and passed
an order of reinstatement with continuity and 25% of back wages.
Being aggrieved thereby, the aforesaid two appeals.
4] Shri U.S. Dastane, learned Counsel for the appellant
employer, submits that the learned Single Judge has erred in holding
that it was necessary for the President to have recorded his
dissatisfaction with regard to the written explanation submitted by the
employee and that such nonsatisfaction ought to have been
forwarded to the management. The learned Counsel further submits
that the finding of the learned Single Judge that since the
management had already taken a decision on 18.12.1992 to hold the
departmental enquiry against the employee and that since the
President was party to the said decision, he had disqualified himself
from participating in the further proceedings, is also not sustainable.
He submits that the learned Single Judge while arriving at the said
finding has failed to take into consideration the provisions of Rule 33
of the said Rules. The learned Counsel further submits that the
learned Single Judge has further erred in holding that appointing Shri
Ballal, who was an award winning teacher was not in accordance
with law, since he was not on panel maintained by the Education
Officer. It is submitted that no such panel is maintained by the
Education Officer and as such, the requirement is only to have a third
person on a Committee, who is an award winner. The learned
Counsel further submits that the learned Single Judge has also erred
in holding that prejudice was caused to the employee, inasmuch as
he was denied a legal assistance. The learned Counsel submits that
unless there is a provision in the relevant Rules which permits a legal
assistance to be provided, the legal assistance cannot be provided to
an employee in the departmental proceedings.
5] The learned Counsel in this respect relies on the
judgments of the Apex Court in the case of N. Kalindi and others
.vs. M/s. Tata Locomotive and Engineering Co. Ltd., Jamshedpur
reported in AIR 1960 SC 914(1), D.G. Railway Protection Force
and others .vs. K. Raghuram Babu reported in (2008) 4 SCC 406
and National Seeds Corporation Limited .vs. K.V. Rama Reddy
reported in (2006) 11 SCC 645.
6] Per contra, Shri R.S. Parsodkar, learned Counsel for the
employee, submits that the learned Single Judge has erred in holding
that no prejudice was caused to the employee by not forwarding him
a copy of the findings on the charges by the Enquiry Committee.
The learned Counsel further submits that the learned Single Judge
has also erred in holding that no prejudice was caused to the
employee even if the findings of all the members of the Enquiry
Committee were not made available to him. The learned Counsel in
this respect relies on the judgment of the Apex Court in the case of
Vidya Vikas Mandal and another .vs. The Education Officer &
another reported in 2007(2) ALL MR 461. The learned Counsel
further submits that the learned Single Judge has also erred in
holding that since the enquiry was vitiated, it was not necessary to go
into the merits of the matter. The learned Counsel in this respect
relies on the judgment of the Apex Court in the case of Anant R.
Kulkarni .vs. Y.P. Education Society and others reported in
(2013) 6 SCC 515.
7] The learned Single Judge has found it not necessary to go
into the merits of the allegations, inasmuch as the learned Single
Judge was of the view that the appeal deserves to be allowed on the
ground of violations of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 (hereinafter referred to
as “the said Rules”). As such, we also do not find it necessary to go
into the merits of the allegations of misconduct, inasmuch as we are
also of the considered view that the appeal can be decided on the
merits of the interpretation of the provisions of the said Rules, as has
been done by the learned Single Judge.
8] With the assistance of the learned Counsel for the parties,
we have examined the material on record. The undisputed factual
position is thus :
That on the basis of the allegations made against the
petitioner/employee, the management of the employer had held a
meeting on 18.12.1992 and in that meeting the report given by the
Chief Executive Officer was considered and it was resolved that since
prima facie the petitioner had committed misconduct punishable with
severe punishment, an enquiry should be conducted against him and
it was also resolved to suspend him with effect from 2.1.1993.
Accordingly, on 29.1.1993 a communication was sent to the
employee along with draft charges for indiscipline and misconduct in
respect of which enquiry was decided to be conducted. Not only that,
said communication also includes the Statement of Allegations as
well as List of Documents relied upon and the List of Witnesses,
through whom the charges were to be proved. Employee was given
seven days' time to file his reply in defence and it was also specified
that the enquiry would be restricted only to the charges not
acceptable to him. It was further informed to him that if no reply in
writing was received, exparte enquiry would begin. Undisputedly, in
response to the communication dated 29.1.1993, an explanation was
submitted by the employee. In the meeting of the management
dated 18.2.1993 a resolution was passed by the management to the
effect that the explanation of the employee was considered suitably
and it was decided to appoint Enquiry Committee as per Rule 36 of
the Rules. The Resolution further states that the Enquiry Committee
was also to consist of Shri Suresh Shankarrao Ballal, the
Headmaster of Samarth High School as a member, on whom
State/National award has been conferred. The employee named one
Shri Pandurang Krishnarao Tonge as the nominee of the employee.
Since it was an enquiry in case of a head, a third member is required
to be the President of the management. It further appears that
thereafter an application was made by the employee to permit him to
engage the services of a lawyer to assist him. The said application
was rejected on 30.3.1993. Thereafter, additional chargesheet was
also served upon the employee on 9.3.1993 in view of the resolution
of the management dated 8.3.1993. The employee replied to it on
15.3.1993. The explanation submitted by the employee was received
by President on 20.3.1993 and it was considered by the Managing
Committee on 21.3.1993 in which the management found the reply to
be not satisfactory and hence, decided to forward the same to
Enquiry Committee already constituted. Thereafter it appears that
the enquiry proceeded in absence of the employee, as he chose not
to appear. The Enquiry Committee submitted its summary of the
proceedings as required under subrule (4) of Rule 37, which were
sent to the employee on 10.5.1993 and which were received by him
on 14.5.1993. Employee submitted his explanation on 18.5.1993 as
required under subrule (5) of the said Rules. Upon completion of the
enquiry, the Convenor communicated the findings of the Enquiry
Committee to the management on 26.5.1993. The management
passed a Resolution to terminate the services of the petitioner on
29.5.1993 and accordingly, the termination order was issued by the
President of the management on 30.5.1993 which was served on the
employee on 31.5.1993.
9] The learned Single Judge has reproduced the provisions
of Rules 36 & 37 of the Rules in entirety. The decision in the present
case will have to be on the basis of the interpretation of the Rules.
The learned Single Judge has also reproduced the law as laid down
by the Apex Court in the case of State Bank of Patiala .vs. S.K.
Sharma reported in AIR 1996 SC 1669, which elaborately
considers the legal position with regard to the departmental enquiry.
Their Lordships of the Apex Court in the said case have held that the
Regulations which are of substantive nature have to be complied with
and in case of said provisions the theory of substantial compliance
would not be available. Their Lordships have further held that the
provisions which are of fundamental nature are required to be
complied with and in such cases the theory of substantial compliance
would not be available. Further, it has been held that in respect of
procedural provisions other than of fundamental nature, the theory of
substantial compliance would be available and in such cases, the
test of prejudice would be a relevant test.
10] The learned Single Judge in paragraph no.13 has
observed that the management had already resolved on 18.12.1992
itself, to hold departmental enquiry against the petitioner in which
meeting the President was also present and, therefore, had
disqualified himself to perform the duty under Rule 36. It appears
that the provisions of Rule 33 were not brought to the notice of the
learned Single Judge by either of the parties. It will be relevant to
refer to subrule (1) of Rule 33 of the said Rules, which reads thus :
“33. Procedure for inflicting major penalties :
(1) If an employee is alleged to be guilty of any of the
grounds specified in subrule (5) of rule 28 and if thee
is reason to believe that in the event of the guilt being
proved against him, he is likely to be reduced in rank
or removed from service, the Management shall first
decide whether to hold an inquiry and also to place
the employees under suspension and if it decided to
suspend the employee, it shall authorise the Chief
Executive Officer to do so after obtaining the
permission of the Education Officer or, in the case of
the Junior College of Educational and Technical High
Schools, of the Deputy Director. Suspension shall
not be ordered unless there is a prima facie case for
his removal or there is reason to believe that his
continuance in active service is likely to cause
embarrassment or to hamper the investigation of the
case. If the Management decides to suspend the
employee, such employee shall, subject to the
provisions of subrule (5) stand suspended with effect
from the date of such orders.
(2) …...................”
It could thus clearly be seen that if an employee is alleged to be guilty
and if there are reasons to believe that in the event of guilt being
proved against him, he is likely to be reduced in rank or removed
from service, the management is required to decide whether it will
hold an enquiry and is also required to decide as to whether it will
place the employee under suspension. Only after the management
takes such decision to suspend the employee, it can authorize the
Chief Executive Officer to do so, after obtaining permission of the
Education Officer. It can thus clearly be seen that before deciding to
hold a departmental enquiry against an employee and before
deciding to put him under suspension, the management is first
required to take a decision in that regard. The decision of the
management dated 18.12.1992 is taken in view of the provisions of
subrule (1) of Rule 33 of the said Rules. When a law itself requires
the management to first take a decision as to whether it decides to
hold an enquiry against an employee when there are reasons to
believe that in the event of guilt being proved against him, he is likely
to be reduced in rank or removed from service, the management is
bound to follow the said provision. In that view of the matter, we find
that the finding recorded by the learned Single Judge to the effect
that since the management had taken a decision on 18.12.1992 to
hold departmental enquiry against the employee and since the
President was party to that decision, he had disqualified himself to
perform the duty under Rule 36(1), would not be sustainable in law.
11] The next ground on which the learned Single Judge has
found the departmental enquiry to be vitiated is that the President of
the management had not recorded his dissatisfaction to the
explanation of the employee dated 19.1.1993 and also not forwarded
his dissatisfaction to the management and as such, there is noncompliance
with the provisions of Rule 36(2) of the said Rules.
12] The perusal of subrule (2) of Rule 36 would reveal that
after the explanation is received from an employee or a head under
subrule (1) of Rule 36 and if the Chief Executive Officer or the
President as the case may be finds such explanation not to be
satisfactory, he is required to place the same before the management
within 15 days from the date of receipt of explanation. In the present
case, undisputedly, prior to calling the explanation of the employee,
the President had while communicating the decision to hold enquiry
against employee, not only forwarded draft chargesheet but also
statement of allegations, the material sought to be used against him
in respect of each of the allegations and also the names of the
witnesses proposed to be examined. An explanation to the said
communication dated 29.1.1993 was given on 9.2.1993. After receipt
of such explanation, if the President finds that the explanation of the
employee is not satisfactory, the only thing that he is required in law,
is to place it before the management within 15 days from the date of
receipt of explanation. Thereafter, the management is required to
decide within 15 days whether an enquiry is to be conducted against
an employee and only after such a decision is taken, the further
proceedings of the enquiry would commence. It could thus be seen
that if the explanation of the employee is not found to be satisfactory,
the only requirement which the President or Chief Executive Officer is
required to comply is to place the same before the management
within 15 days. If the view of the learned Single Judge is to be
accepted, the rule has to be read by adding certain provisions in the
said rule. We find that if the interpretation as placed by the learned
Single Judge is to be accepted, subrule (2) will have to be read by
adding the words which are emboldened to the said provision, which
read as under :
“36(2). If the Chief Executive Officer or the President, as
the case may be, finds that the explanation submitted by
the employee or the Head referred to in subrule (1) is not
satisfactory, the President or the Chief Executive
Officer shall record his reasons for dissatisfaction in
writing and he shall place the explanation and his
reasons for dissatisfaction before the Management
within fifteen days from the date of receipt of the
explanation. ….............................................”
We are of the considered view that while interpreting a statutory
provision, it will not be permissible for the Court to add the words to
the provision. It is also not a case that the rule is ambiguous in
nature and so as to save it, it is necessary to read down the same.
The test of prejudice applied by the learned Single Judge with regard
to the said Rules also, in our view, is not correct. The President is
not required to communicate the reasons for his dissatisfaction to the
employee, against which an employee has a right to make a
representation to management or so. Upon plain and literal
interpretation of the Rules, the only thing that the President or the
Chief Executive Officer is required to do after he finds the explanation
of the employee to be not satisfactory, is to place the same before
the management. In that view of the matter, we find that the finding
given by the learned Single judge in that regard is also not tenable.
13] The third reasoning given by the learned Single Judge is
that the member chosen by the President, i.e. Shri Ballal, though was
a person on whom State and National award had been conferred, he
was not from the panel of award winning teachers. There is no
provision in the Rules which requires the Education Officer to
maintain any penal of award winning teachers. Shri Parsodkar,
learned Counsel appearing for employee, also fairly concedes that no
such panel is maintained by the Education Officer. Undisputedly, the
said Shri Ballal was a teacher/Headmaster on whom State/National
award was conferred. In that view of the matter, we find that the
reasoning given by the learned Single Judge to the effect that the
enquiry stood vitiated, since Shri Ballal was not from a panel of award
winning teachers, though was a person on whom State/National
award was conferred would not be sustainable.
14] That leaves us with the finding of the learned Single Judge
with regard to prejudice being caused to the employee on account of
denial of an opportunity to engage services of lawyer. The learned
Single Judge in this regard has held that the President was himself a
lawyer and that Presenting Officer was also holding a law degree and
as such, it was necessary for the Committee to have allowed the
employee to engage the services of a lawyer. Though Shri Dastane
has relied on various judgments, we will refer to the judgment of Their
Lordships in the case of National Seeds Corporation Limited .vs.
K.V. Rama Reddy reported in (2006) 11 SCC 645 (cited supra),
wherein Their Lordships had an occasion to consider the issue with
regard to engagement of a legal practitioner. Their Lordships were
considering Rule 37(7) of the National Seeds Corporation (Conduct,
Discipline and Appeal) Rules, 1992. It will be relevant to reproduce
the following observations of the Apex Court, wherein Their Lordships
have also considered the earlier judgments on the issue :
“6. The rival submissions have to be tested in the
background of Rule 31(7) of the Rules. The same reads
as follows:
"Rule 31(7) The employee may take the
assistance of any other employee working in the
particular unit where the employee is
working/was working at the time of happenings
of alleged charges to which the inquiry relates or
where the inquiry is being conducted to present
the case on his behalf but may not engage a
legal practitioner for the purpose unless the
presenting officer appointed by the disciplinary
authority is a legal practitioner or the disciplinary
authority having regard to the circumstances of
the case, so permits."
7. The law in this country does not concede an
absolute right of representation to an employee in
domestic enquiries as part of his right to be heard and
that there is no right to representation by somebody else
unless the rules or regulation and standing orders, if
any, regulating the conduct of disciplinary proceedings
specifically recognize such a right and provide for such
representation (See N. Kalindi v. Tata Locomotive &
Engg. Co. Ltd. (AIR 1960 SC 914), Dunlop Rubber Co.
(India) Ltd. v. Workmen (AIR 1965 SC 1392), Crescent
Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993
(2) SCC 115), and Indian Overseas Bank v. Indian
Overseas Bank Officers' Association and Another
(2001(9) SCC 540).
8. “27. The basic principle is that an employee
has no right to representation in the departmental
proceedings by another person or a lawyer unless the
Service Rules specifically provide for the same. The
right to representation is available only to the extent
specifically provided for in the Rules. For example, Rule
1712 of the Railway Establishment Code provides as
under:
"The accused railway servant may present his
case with the assistance of any other railway
servant employed on the same railway
(including a railway servant on leave
preparatory to retirement) on which he is
working."
28. The right to representation, therefore, has been
made available in a restricted way to a delinquent
employee. He has a choice to be represented by
another railway employee, but the choice is restricted to
the Railway on which he himself is working, that is, if he
is an employee of the Western Railway, his choice
would be restricted to the employees working on the
Western Railway. The choice cannot be allowed to travel
to other Railways.
29. Similarly, a provision has been made in Rule 14(8)
of the Central Civil Services (Classification, Control &
Appeal) Rules 1965, where too, an employee has been
given the choice of being represented in the disciplinary
proceedings through a coemployee.
30. In N. Kalindi's case (supra) a threeJudge Bench of
this Court observed as under : (SCR pp. 40910)
"Accustomed as we are to the practice in the
courts of law to skilful handling of witnesses by lawyers
specially trained in the art of examination and crossexamination
of witnesses, our first inclination is to think
that a fair enquiry demands that the person accused of
an act should have the assistance of some person, who
even if not a lawyer may be expected to examine and
crossexamine witnesses with a fair amount of skill. We
have to remember however in the first place that these
are not enquiries in a court of law. It is necessary to
remember also that in these enquiries, fairly simple
questions of fact as to whether certain acts of
misconduct were committed by a workman or not only
fall to be considered, and straightforward questioning
which a person of fair intelligence and knowledge of
conditions prevailing in the industry will be able to do will
ordinarily help to elicit the truth. It may often happen
that the accused workman will be best suited, and fully
able to cross examine the witnesses who have spoken
against him and to examine witnesses in his favour.
It is helpful to consider in this connection the
fact that ordinarily in enquiries before domestic tribunals
the person accused of any misconduct conducts his own
case. Rules have been framed by Government as
regards the procedure to be followed in enquiries
against their own employees. No provision is made in
these rules that the person against whom an enquiry is
held may be represented by anybody else. When the
general practice adopted by domestic tribunals is that
the person accused conducts his own case, we are
unable to accept an argument that natural justice
demands that in the case of enquiries into a chargesheet
of misconduct against a workman he should be
represented by a member of his Union. Besides it is
necessary to remember that if any enquiry is not
otherwise fair, the workman concerned can challenge its
validity in an industrial dispute.
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."
31. In another decision, namely, Dunlop Rubber
Company's case (supra), it was laid down that there was
no right to representation in the disciplinary proceedings
by another person unless the Service Rules specifically
provided for the same.
32. The matter again came to be considered by a
threeJudge Bench of this Court in Crescent Dyes's
case (supra), Ahmadi, J. (as he then was) in the context
of Section 22(ii) of the Maharashtra Recognition of
Trade Unions and Unfair Labour Practices Act, 1971, as
also in the context of domestic enquiry, upheld the
statutory restrictions imposed on delinquent's choice of
representation in the domestic enquiry through an agent.
33. The earlier decisions in N. Kalindi's case
(supra); Dunlop Rubber Company's case (supra) and
Brooke Bond India (P) Ltd. v. Subba Raman (S.) and
another, (1961 (2) LLJ417), were followed and it was
held that the law in this country does not concede an
absolute right of representation to an employee as part
of his right to be heard. It was further specified that
there is no right to representation as such unless the
Company, by its Standing Orders, recognises such a
right. In this case, it was also laid down that a
delinquent employee has no right to be represented in
the departmental proceedings by a lawyer unless the
facts involved in the disciplinary proceedings were of a
complex nature in which case the assistance of a lawyer
could be permitted.
34. We have seriously perused the judgment of
the High Court which, curiously, has treated the decision
of this Court in Crescent Dyes's case (supra) as a
decision in favour of the respondent No.1. The process
of reasoning by which this decision has been held to be
in favour of respondent No.1 for coming to the
conclusion that he had a right to be represented by a
person who, though an officebearer of the Trade Union,
was not an employee of the appellant is absolutely
incorrect and we are not prepared to subscribe to this
view. Consequently, we are of the opinion that the
judgment passed by the High Court in so far as it
purports to quash the order of the Appellate Authority, by
which the Draft Standing Orders were certified, cannot
be sustained.”
The position as aforenoted was reiterated in Bharat
Petroleum Corporation Ltd. v. Maharashtra General
Kamgar Union & Ors. (JT 1998 (8) SC 487).
9. Though it is correct, as submitted by learned
counsel for the respondent, that even if the presenting
officer is not a legal practitioner, the disciplinary authority
having regard to the circumstances of the case may
permit engagement of a legal practitioner. But it would
depend upon the factual scenario.
10. Learned counsel for the appellantCorporation
has brought to our notice office
memorandum dated 21.11.2003 by which the prayer to
engage a legal practitioner to act as a defence assistant
was rejected. Reference was made to the rules, though
no specific reference has been made to the discretion
available to be exercised in particular circumstances of a
case. The same has to be noted in the background of
the basis of prayer made for the purpose. The reasons
indicated by appellant for the purpose are (a) amount
alleged to have been misappropriated is Rs.63.67 lakhs
(b) number of documents and number of witnesses are
relied on by the respondent, and (c) the prayer for
availing services of the retired employee has been
rejected and the respondent is unable to get any
assistance to get any other able coworker. None of
these factors are really relevant for the purpose of
deciding us as to whether he should be granted
permission to engage the legal practitioner. As noted
earlier, he had to explain the factual position with
reference to the documents sought to be utilized against
him. A legal practitioner would not be in a position to
assist the respondent in this regard. It has not been
shown as to how a legal practitioner would be in a better
position to assist the respondent so far as the
documents in question are concerned. As a matter of
fact, he would be in a better position to explain and
throw light on the question of acceptability or otherwise
and the relevance of the documents in question. The
High Court has not considered these aspects and has
been swayed by the fact that the respondent was
physically handicapped person and the amount involved
is very huge. As option to be assisted by another
employee is given to the respondent, he was in no way
prejudiced by the refusal to permit engagement of a
legal practitioner. The High Court's order is, therefore,
unsustainable and is set aside.”
It could thus be seen that in the said case the Rules itself permitted a
legal practitioner to be engaged when the Disciplinary Authority was
a legal practitioner or the circumstances of the case so permitted. As
such, the High Court had held that it was necessary to provide
assistance to the employee by engaging a legal practitioner.
However, in spite of the Rules permitting, Their Lordships of the Apex
Court found that the judgment of the High Court was not sustainable.
In the present case, the Rules do not provide the services of the legal
practitioner to be engaged. We, therefore, find that in the absence
of there being any provision in the Rules permitting the services of a
legal practitioner to be engaged, the finding of the learned Single
Judge could not be sustainable.
15] In that view of the matter, we find that the findings as
recorded by the learned Single Judge with regard to the enquiry
being vitiated on the four grounds would not be sustainable.
16] That leaves us with the appeal of the employee. The
learned Single Judge has come to a finding that though the findings
of the Enquiry Committee as required under subrule (6) of Rule 37
are not communicated to the employee, no prejudice would be
caused to the employee, inasmuch as the findings of the Enquiry
Committee are binding upon the management and they have no
option but to implement the same. It is the specific case of the
employee that the enquiry report was only signed by two members
and not by all the three members. In any case, the Hon'ble Apex
Court in the case of Vidya Vikas Mandal and another .vs. The
Education Officer & another reported in 2007(2) ALL MR 461
(cited supra) upon interpretation of the Rules has held thus :
“............In our opinion, the report submitted by individual
members is also not in accordance with the Rules. When
the Committee of three members are appointed to inquire
into a particular matter, all the three should submit their
combined report whether consenting or otherwise...........”
It could thus be seen that Their Lordships of the Apex Court have
held that the report to be valid has to be signed by all the three
members. Undisputedly, in the present case, the report is not signed
by the three members. We, therefore, find that the report would be
vitiated only on this ground and it will not be necessary for us to go
into the correctness or otherwise of the view taken by the learned
Single Judge that nonforwarding of the findings under subrule (6) of
Rule 37 caused prejudice or not.
17] In normal course, on account of the enquiry proceedings
being vitiated on noncompliance of procedural aspects, the matter
would have been required to be remitted to the Enquiry Committee.
However, the employee has retired long back in 2008. We find that
remanding enquiry proceedings at this stage would not be in the
interest of justice. Though the learned Single Judge has refused to
go into the merits of the matter but has in detail reproduced the
charges which are levelled against the employee. Perusal of the
charges would reveal that there is not a single charge of
misappropriation or embezzlement or a charge which may cause a
doubt upon the integrity of the appellant or a charge which may be
said to have been concerning moral turpitude. In that view of the
matter, we find that remitting the matter for fresh enquiry at this stage
would be dragging the employee to further sufferance. He has
already suffered a lot being out of employment for a considerable
period. The learned Single Judge while granting him continuity and
reinstatement has restricted the claim of back wages only to 25%.
The learned Single Judge has given sound and cogent reasons in
paragraph 17 while restricting the claim of back wages only to 25%.
We, therefore, find that it will be in the interest of justice to maintain
the order of the learned Single Judge in so far as it grants
reinstatement with continuity but restricts the claim of back wages to
25%. We are fortified in the view that we are taking in view of
judgment of Apex Court in the case of Anant R. Kulkarni .vs. Y.P.
Education Society and others reported in (2013) 6 SCC 515
(cited supra).
18] In the result, though we find that the grounds as raised in
the appeal of the employee are wellmerited, however, since we find
that on account of the grounds raised in the appeal of the employee,
the operative part of the order of the learned Single Judge warrants
no interference. The appeals filed by the employer as well as the
employee are dismissed. There will be no order as to costs.
19] Needless to state that the amount which was deposited in
this Court by the employer is permitted to be withdrawn by the
employee. The balance back wages as per the order passed by the
learned Single Judge shall be paid by the employer within a period of
three months from today. Needless to state that as a corollary to the
order passed by the learned Single Judge, the employee who is
already terminated is entitled to all the terminal as well as retiral
benefits, so also the pensionary benefits.
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