Bombay High Court
M/S Esdee Paints Ltd. And Ors vs Sarva Shramik Sangh on 7 October, 2016
Bench: R.M. Savant
(904)-WP-11414-16.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11414 OF 2016
1. M/s. Esdee Paints Ltd. ]
Plot No.D-20/2, ]
T.T.C. Industrial Area, ]
Indira Nagar, Turbhe, ]
Navi Mumbai. ]
2. Mr. Mahavir Dawada, Director ]
M/s. Esdee Paints Ltd. ]
Plot No.D-20/2, ]
T.T.C. Industrial Area,
Indira Nagar, Turbhe,
ig ]
]
Navi Mumbai. ]
3. Mr. Sunil Nayak, ]
Administrative Manager, ]
M/s. Esdee Paints Ltd. ]
Plot No.D-20/2, ]
T.T.C. Industrial Area, ]
Indira Nagar, Turbhe, ]
Navi Mumbai. ]..Petitioners
Versus
Sarva Shramik Sangh, ]
Neelkanth Apartment, ]
Near Dr. Bhadkamkar Hospital, ]
Mahagiri, Thane. ]..Respondent
Shri. A. K. Jalisatgi i/by Shri. Ratnesh R. Mishra for the Petitioners.
Shri. Ravindra Nair for the Respondent.
CORAM : R. M. SAVANT, J.
DATE : 7th OCTOBER, 2016
ORAL JUDGMENT
1 Rule. Having regard to the nature of the challenge raised
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made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Articles 226 and 227
of the Constitution of India is invoked against the order dated 16.08.2016
passed by the Learned Member of the Industrial Court, Thane, by which
order, the Revision Application filed by the Respondent being Revision
Application (ULP) No.28 of 2016 came to be allowed. Resultantly, the
order dated 20.07.2015 passed by the Labour Court came to be set aside
and in place thereof directions as contained in clause 2 of the operative
part of the said order came to be issued. The said clause 2 is reproduced
hereinunder for the sake of ready reference.
"2. Exh.U-2 in Complaint (ULP) No.152/2014 allowed in
following terms:-
(i) Respondents shall pay Rs.10,000/- for each group of
employee within one month from the date of this order."
3 It is not necessary to burden this order with unnecessary
details. Suffice it would be to state that the Respondent herein has filed a
Complaint being Complaint (ULP) No.152 of 2014 under Items 1(a) (b)
and (f) of Schedule IV of the MRTU & PULP Act, 1971. The cause for
filing the said Complaint is the departmental enquiry initiated against six
workmen of the Petitioner company who have been charged with various
misconducts and whose cause the Respondent Union is espousing. In so
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far as the said enquiry is concerned, the same has commenced pursuant
to the charge-sheet issued to the said six workmen. In the said Complaint,
the Respondent filed an application Exh.U-2 for the reliefs which have
been mentioned in paragraph 3 of the said application. Amongst the
reliefs claimed by the said interim application is the relief to engage an
advocate of their choice and to bear the cost of such advocate in respect
of his travelling and food expenses. The said clause (iv) is reproduced
hereinunder for the sake of ready reference :-
"(iv) Direct the Respondent to allow the workers concerned
to engage the Advocate of their choice as their Defence
Representative and to bear the cost of such Advocates in
respect of his and is travelling and food expenses."
4 It seems that after the application for interim reliefs came to
be filed an understanding was reached between the Petitioners and the
Respondent Union. As a result of which, a pursis came to be filed on
13.02.2015 in the said Complaint (ULP) No.152 of 2014. The said pursis
records the agreement reached between the parties. Clauses (i) and (ii)
of the said pursis are reproduced hereinunder for the sake of ready
reference :-
"i) The condition of signing the Suspension register is
withdrawn and the workers need not sign the same.
ii) The chargesheeted workmen will be permitted to
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engage an Advocate or office bearer of the union namely
Seema Sarnaik Singh."
At the bottom of the said pursis, it is stated that the parties pray that the
Hon'ble Court be pleased to dispose of the interim relief application as
not pressed at the said stage. It appears that the application for interim
reliefs was accordingly disposed of as not pressed.
5 The Respondent Union long after the said pursis dated
13.02.2015 was filed disposing of the said application Exh.U-2, filed an
application for rehearing of the said application Exh.U-2 in respect of the
remaining matters. It was stated in the application that other issues in
the application for interim reliefs and the Complaint are not resolved
between the parties and therefore there was need and an urgency in
respect of the remaining issues and therefore prayed that the application
for interim reliefs be heard on the remaining issues. The Learned
Presiding Officer of the Labour Court thereafter heard the said
application Exh.U-2 and by his order dated 20.07.2015 rejected the said
application. The gist of the reasoning of the Learned Presiding Officer
was that in respect of the relief of payment of advocates fees, there was
no material placed on record to substantiate the claim for the said relief
either in the form of contract or in the form of rules. The Learned
Presiding Officer held that no doubt, the Model Standing Orders are not
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applicable, but the Complainant cannot claim payment of advocates fees
as a matter of right. The Learned Presiding Officer held that since the
Respondent i.e. the Company has allowed the Complainant to engage an
advocate, there is no violation of the principles of natural justice on
account of non-payment of the advocates fees. The Learned Presiding
Officer has adverted to the judgments cited on behalf of the Union and
recorded a finding that the said judgments are not applicable in the facts
and circumstances of the present case. In so far as the judgment of the
Apex Court reported in 1996 DGLS(Soft.) 824 in the matter of Director,
Beg Vaccine Laboratory, Madras Vs. S. Pandian is concerned, the
Learned Presiding Officer distinguished the said judgment and held that
the same would not apply in the facts and circumstances of the present
case. The Learned Presiding Officer of the Labour Court as indicated
above, has by order dated 20.07.2015 rejected the application for interim
reliefs.
6 The Respondent aggrieved by the said order dated
20.07.2015 filed a Revision Application after seven months of the said
order on 20.04.2016. Suffice it would be to state that the Learned
Member of the Industrial Court has by the impugned order dated
16.08.2016 allowed the said Revision Application and set aside the order
passed by the Learned Presiding Officer of the Labour Court dated
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20.07.2015 and issued a direction vide clause 2 of the operative part of
the impugned order which has already been adverted to hereinabove.
The result of the direction is that the Respondents i.e. the Petitioners
herein are required to pay Rs.10,000/- for each group of employees
within one month from the date of the said order. The Industrial Court
whilst allowing the Revision Application has observed that the
departmental enquiry can be interfered with at any stage of hearing. The
Learned Member of the Industrial Court held that since the employees
are getting Rs.8,500/- as subsistence allowance, they cannot be foisted
with the additional burden of the payment of the advocates fees. The
Learned Member of the Industrial Court has further observed that the
right to get legal fees of the advocate is integral part of natural justice for
fair and proper enquiry. The Learned Member of the Industrial Court as
indicated above has accordingly allowed the said Revision Application by
the impugned judgment and order dated 16.08.2016.
7 Heard the Learned Counsel for the parties.
8 The Learned Counsel for the Petitioners Shri. A. K. Jalisatgi
would contend that having reached an agreement which has been
recorded in the pursis dated 13.02.2015, whereby the Petitioners had
given a concession in the matter of the delinquent employees being
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represented by advocate, it was not open for the Respondent to re-apply
for the grant of interim reliefs. The Learned Counsel would contend that
the claim for advocates fees does not have any basis in law. It was the
submission of the Learned Counsel that the Learned Member of the
Industrial Court has erred in holding that the enquiry proceedings could
be interfered with at any stage. It was the submission of the Learned
Counsel that the said observation of the Learned Member of the
Industrial Court was contrary to the ratio laid down in the judgment of
the Apex Court reported in (1995) 6 SCC 326 in the matter of
Hindustan Lever Ltd. Vs. Ashok Vishnu Kate and others. The Learned
Counsel would contend that the judgment in Director, Beg Vaccine
Laboratory, Madras's case (supra) is clearly distinguishable and would
not have any application in the facts of the present case.
9 Per contra, the Learned Counsel appearing for the
Respondent Shri. Ravindran Nair would support the impugned order. It
was the submission of Shri. Ravindran Nair that having regard to the fact
that the employees are drawing only Rs.8,500/- per month, it is not
possible for them to pay advocates fees out of the said amount. The
Learned Counsel would contend that the payment of advocates fees
would be a facet of fair opportunity being given to the employees in the
departmental enquiry as otherwise the employees are pitted against the
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lawyers who are appearing for the company in the departmental enquiry.
The Learned Counsel appearing for the Respondent sought to place
reliance on the judgment of the Apex Court in Director, Beg Vaccine
Laboratory, Madras's case (supra) to contend that in the facts of the said
case, wherein the departmental enquiry was against class IV employees,
the Apex Court thought it fit to grant them the advocates fees as they did
not have the financial wherewithal to pay the same.
Having heard the Learned Counsel for the parties, I have
considered the rival contentions. As indicated above, on account of the
agreement reached between the parties as evidenced by the pursis dated
13.02.2015 the delinquent employees were permitted to be represented
by an advocate in the departmental proceedings which are being
conducted against them. In so far as the said pursis is concerned, as
indicated above, a statement is appearing at the foot of the said pursis
that the parties pray that the interim application being Exh.U-2 be
disposed of in terms of the said pursis. In fact, an order was passed by
the Labour Court disposing of the application Exh.U-2 in terms of the
said pursis. It is long after the said pursis was filed that an application
came to be made in July 2015 for revival of the application for interim
reliefs in so far as the other reliefs which were sought vide the said
application Exh.U-2. This was notwithstanding the fact that in respect of
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the appearance of an advocate and the payment of his fees, there was an
agreement between the parties as evidenced by the pursis dated
13.02.2015. Notwithstanding the same, the Respondent applied for
revival of the application for the interim reliefs. Whether the Respondent
Union could file such an application after a concession was made by the
Petitioner in the matter of delinquents being represented by advocate
therefore begs an answer.
The Labour Court as indicated above heard the application
Exh.U-2 and has rejected the said application for the reasons mentioned
in the said application which reasons are primarily revolving around the
fact that there is no basis in law for the delinquents to claim advocates
fees. The Respondent Union aggrieved by the order passed by the Labour
Court filed the Revision Application almost after seven months of the
order being passed by the Labour Court. It seems that in the interregnum
the enquiry has proceeded and that the Petitioners have finished the
recording of the evidence of their witnesses. It seems that the evidence of
the delinquents is also over as can be seen from the averment made in
paragraph 3(h) of the Writ Petition. It seems that upto the stage at which
the enquiry is at present, the office bearer of the Respondent Union is
representing the delinquents in the said enquiry.
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12 Hence though by pursis dated 13.02.2015 an agreement was
reached as regards the delinquents being represented by an advocate, the
delinquents have as yet not appointed any advocate. The Industrial Court
considered the said Revision Application and has by the impugned order
allowed the same and issued the direction as contained in the operative
part of the said impugned order. A reading of the impugned order
discloses that the Learned Member of the Industrial Court seems to have
been swayed by the fact that the employees who are getting a
subsistence allowance of Rs.8,500/- per month would be saddled with
the additional burden of payment of the advocates fees and has therefore
directed the Petitioners to pay the advocates fees to the extent mentioned
in clause 2 of the operative part of the impugned order. The Learned
Member of the Industrial Court in the said process has not appreciated
the fact that there is no right in the employees to get the advocates fees
paid by the employer i.e. the Petitioners herein.
13 The Learned Member of the Industrial Court, in the facts of
the present case, has erred in holding that the payment of the advocates
fees is also a facet of the principles of natural justice. It is required to be
noted that in the instant case, the delinquent employees are not on their
own but are being represented by a Union who in fact has filed the
Complaint on their behalf. The delinquent employees are thus far being
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represented in the departmental enquiry by the office bearer of the
Union. It is therefore not as if that the said delinquent employees are
undefended in the said enquiry. It is also required to be noted that after
the agreement was reached between the parties on 13.02.2015 and the
interim application Exh.U-2 came to be disposed of, the application for
revival of the application for interim reliefs was filed almost five months
thereafter, even the Revision Application was filed by the Respondent
seven months after the order came to be passed by the Labour Court. The
aforesaid facts therefore can be said to be a pointer to the fact whether
there is any need to engage an advocate. Be that as it may, the fact
remains that there is no basis in law for a delinquent to claim the fees of
the advocate who is appearing for him in a departmental enquiry. In both
the Courts below the Respondent Union has not been able to point out
any provision of law on the basis of which a claim for payment of
advocates fees could be made. In so far as the judgment of the Apex
Court in Director, Beg Vaccine Laboratory, Madras's case (supra) is
concerned, the facts in the said case were that the departmental enquiry
was being held against class IV employees under the Central Civil
Services Rules, 1965. The employees were under suspension and under
the Central Rules the subsistence allowance is a percentage of the basic
wages, it is in the said context, the Apex Court directed the payment of
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the advocates fees to the employees concerned therein.
14 In the instant case, the delinquent employees as per the
Learned Counsel for the Petitioners are being paid the full wages i.e.
amount of Rs.8,500/- per month. The delinquent employees are also
represented by the Respondent Union both in the Complaint as well as in
the departmental proceedings through a office bearer who as indicated
above has participated up to the stage at which the departmental
proceedings are at present. Hence the facts of the present case are clearly
distinguishable from the facts of the case in Director, Beg Vaccine
Laboratory, Madras's case (supra). Hence the said judgment would not
further the case of the Respondent in claiming the advocates fees from
the Petitioners. In that view of the matter the impugned order dated
16.08.2016 is required to be quashed and set aside and is accordingly
quashed and set aside. The Revision Application would accordingly stand
dismissed. It is however clarified that the delinquent employees would
however be entitled to be represented by an advocate if they so choose.
The Petition is allowed to the aforesaid extent. Rule is accordingly made
absolute with parties to bear their respective costs.
[R.M.SAVANT, J]
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