Sandvik Asia Limited vs Sandvik Asia Employees' Union And ...
2001 Latest Caselaw 652 Bom

JUDGMENT

R.M. Lodha, J.

1. Rule. Returnable forthwith.

2. Mr. Kiran Bapat, advocate waives service for respondent Nos. 1 and 3. Service of rule on respondent Nos. 2 and 4 is dispensed with.

3. The respondent No. 1 herein (for short 'the complainant') filed a complaint (ULP) No. 86 of 2001 before the Industrial Court, Pune under Section 28 read with Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short 'MRTU& PULP Act') praying therein that petitioner herein (for short 'the employer') be declared to have engaged in unfair labour practice by appointing Shri M.P. Gokhale as enquiry officer and the said enquiry officer be restrained from. conducting enquiry against respondent No. 2 Shri K.M. Bhalerao and respondent No. 3 Shri R.G. Solomon herein (for short 'the employees') and the entire proceedings of enquiry conducted by enquiry officer be, declared null and void. In the said complaint, an application for interim relief was made. After hearing the parties, the Industrial Court by impugned order dated April 16, 2001 prima facie held that the employer has committed an unfair labour practice under Item 9 of Schedule IV of MRTU & PULP Act and restrained the employer from appointing Shri M.P. Gokhale as enquiry officer and Shri V.G. Deshpande, advocate as management representative. The said order dated April 16, 2001 is under challenge in this writ petition.

4. The employees have been charge-sheeted of misconduct and the domestic enquiry by appointing Shri M.P. Gokhale as enquiry officer was instituted. The enquiry officer was appointed on January 31, 2001. The employees made applications in the month of March, 2001 before the enquiry officer praying therein that they be permitted to be represented by the advocate Shri N. A. Kulkarni and his fees may be directed to be paid by the employer. After the said applications were made by the employees before the enquiry officer, the complainant filed complaint as referred to hereinabove before the Industrial Court. In substance in the applications made by the employees it was averred that under certified Standing Orders and the law laid down by Apex Court in Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tnpathi, , the employees have no right to be represented through counsel or a person outside their department and therefore, the management cannot be represented by counsel and therefore, appointment of Shri V.G. Deshpande, advocate as a management representative in the enquiry was illegal. It was further averred in the applications that Mr. V.G. Deshpande is a practising lawyer having more than 20 years of experience in labour and industrial laws and therefore, they may be permitted to be represented by an advocate though Standing Orders do not provide so. It was also prayed that since the management has appointed the lawyer, the expenditure for employees' lawyer be borne by the employer. In the backdrop of the averments made in the applications by the employees before the enquiry officer, the prima facie findings recorded by Industrial Court that the employer has engaged in unfair labour-practice under Item 9 of Schedule IV under MRTU & PULP Act cannot be sustained nor the directions given by the Industrial Court in the impugned order restraining the petitioners herein from appointing Shri M.P. Gokhale as enquiry officer and Shri V.G. Deshpande as management representative can be sustained. The Industrial Court relied upon Clause 25(4) of the certified standing orders which reads thus:

"A workman against whom an enquiry has to be held shall be given a charge-sheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman's plea shall be recorded."

5. By construing the said clause properly it cannot be said that there is any prohibition for the employer to appoint the enquiry officer outside the company or there is any prohibition for the company to have the management representative from outside. The expression ..... 'He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department himself ...... cannot be read to mean that the employer cannot appoint enquiry officer from outside the company or the employer cannot be represented by a representative outside the company merely because employee has only been permitted to be defended by employee working in the same department as himself. Prima facie construction of the said clause by the Industrial Court is unsustainable. I am not dealing with the said clause at length presently as the matter is only at the stage of interim relief and complaint is pending before the Industrial Court but suffice it to observe that Clause 25(4) prima facie cannot be read to mean that the employer cannot appoint an advocate as enquiry officer for conducting domestic enquiry or that employer cannot be permitted to be represented by an advocate in the domestic enquiry.

6. The Industrial Court also appears to have misconstrued the judgment of the Apex Court in Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi (supra). In Crescent Dyes & Chemicals the Apex Court held thus 1993-I-LLJ-907 at p. 914:

"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 of one's own 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, the delinquent's request to be represented through a counsel or agent could be conceded."

7. The Supreme Court has, thus, held that in Crescent Dyes (supra) that delinquent does not have inherent right to be represented by a counsel or agent of one's own choice. Such right of a delinquent to be represented by a counsel or agent of one's own choice is not an absolute right and it is always subject to law, rules or regulations. Thus, the clause aforequoted in the certified Standing Orders permitting a delinquent to be defended by

workman working in the same department as himself cannot be said to be violative of principles of natural justice if the company appoints an advocate as enquiry officer or company is represented by an advocate.

8. In Saran Motors (Private) Ltd. v.

Vishwanath and Anr., 1964-II-LLJ-139, the Apex Court was seized of the question whether an advocate who has been appointed as enquiry officer can be said to have bias for a delinquent merely because that enquiry officer has been engaged as lawyer by the employer in industrial matters at some occasions. The Apex Court observed thus at p. 141 of LLJ:

"The first question which we have to decide is whether the Tribunal was justified in holding that Shri Chadha has a bias in favour of the appellant, and so, was incompetent to hold the enquiry. It appears that Shri Chadha is sometimes engaged by the appellant as a lawyer in industrial matters and the respondents' case was that he had been entrusted with the work of holding such enquiries on four or five occasions. It is on these grounds that the Tribunal has held that Shri Chadha was not competent to hold the present enquiry.

In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that the domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the Tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It is well known that enquiries of this type are generally conducted by officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously unsound to take the view that a lawyer, who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employer's lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the Tribunal for ignoring findings of the domestic enquiry must be reversed."

9. The learned single Judge of this Court in Annasaheb Dattatraya Sandbhor v. Garware Wall Ropes Ltd. and Anr. 2000 II CLR 522 considered the question whether the principles of natural justice can be said to have been violated where the management appoints a legally trained person while the delinquent is represented by the employee working in the department in which delinquent works. The learned single Judge referred to various decisions of the Apex Court including the judgment of the Apex Court in Crescent Dyes & Chemicals Ltd. (supra) and observed thus:

"The principles of natural justice cannot be stretched so far that the management also should appoint a person of the equal level of the delinquent workman. According to Shri Bukhari since the workman was pitted against such a legally trained person his request to engage a legal practitioner ought to have been granted. Shri Bukhari therefore contends that in the absence of an advocate there was a great handicap for the workman to defend himself, a serious prejudice was caused to him and therefore, the principles of natural justice were to be violated. I am not able to agree with the said contention of Shri Bukhari. Admittedly the parties are governed by the model Standing Orders. The rights of the delinquent workman to be defended is restricted wholly to the provisions under the Standing Orders wherein he can be defended only by the co-workman or his union representative. Shri Bukhari has submitted that in view of the charge against the workman neither any co-workman nor any union representative was prepared to defend the delinquent workman in the enquiry and therefore, it was necessary for him to seek permission to

bring in a legal practitioner. His rights are founded in and are confined to the standing orders. No party can travel beyond the model standing orders applicable to them

8. ........The law on this point has been sufficiently clarified and crystalised by the Supreme Court in the judgment of Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi (supra). The Bench of the three Hon'ble Judges of the Supreme Court has succinctly stated after considering its earlier decisions. The Supreme Court has finally concluded that the right to be represented through counsel or agent was restricted, controlled or regulated by statute, rules, regulations or standing orders. It is further observed that a delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right,"

10. Prima facie, therefore, the appointment of Shri M.P. Gokhale as enquiry officer to conduct the domestic enquiry against the employees and appointment of Shri V.G. Deshpande, advocate as representative on behalf of the employer cannot be said to be an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. As a matter of fact, the grievance of the employees in the applications made before the enquiry officer was substantially not relating to the appointment of Shri M.P. Gokhale as enquiry officer but was to the effect that when Shri V.G. Deshpande, advocate has been appointed by the employer as their representative, the delinquents should also be permitted to engage counsel and that the expenditure of their advocates must be borne by the employer.

11. Mr. Cama, learned senior counsel appearing for the employer submitted that employer has no objection if the employees are represented by counsel in the domestic enquiry instituted against them but he submitted that the expenses of the advocate cannot be asked to be met by the company. It is true that ordinarily the employer cannot be asked to bear the expenses of delinquent's advocate if delinquent is permitted to be represented by counsel in the domestic enquiry but in the peculiar facts and circumstances of the case which is not to be treated as precedent, I am satisfied that interest of justice would be subserved if the employer is asked to pay a sum of Rs. 7,500/- lumpsum to each of the delinquent employees towards expenditure for engaging the advocate in the enquiry.

12. Consequently, the writ petition is allowed. The impugned order dated April 16, 2001 is quashed and set aside. The application for interim relief made by the complainant stands rejected. The delinquent-employees shall be at liberty to be represented by their advocates in the domestic enquiry instituted against them as already conceded by the learned senior counsel for employer. The employer is further directed to pay a sum of Rs. 7,500/- to each of the delinquent-employees as a lumpsum amount towards advocate's expenses for the entire domestic enquiry in case the delinquent-employees decide to be represented by advocate in the domestic enquiry.

13. Rule is disposed of in the aforesaid terms.

14. Needless to say that the observations made in the present order are only for the purposes of consideration of interim application and shall not influence the Industrial Court in deciding the complaint finally which would be decided on its own merits.

15. The parties may be provided ordinary copy of this order duly authenticated by Court Sherestedar on payment of usual copying charges.