Shri Chand Kiran vs M/S. Sawhney Rubber Industries
2011 Latest Caselaw 4945 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: 3rd October, 2011
+                              WP(C) No.8648/2009

SHRI CHHAUGUR PAL                                                 ..... Petitioner
                Through:                     Mr. Sanjoy Ghose, Advocate
                                          Versus
M/S. SAWHNEY RUBBER INDUSTRIES                ..... Respondent
                 Through: Mr. Anurag Lakhotia, Adv.
                          AND

+                              WP(C) No.8649/2009

SHRI HARI SHANKAR                                                 ..... Petitioner
                 Through:                    Mr. Sanjoy Ghose, Advocate
                                             Versus
M/S. SAWHNEY RUBBER INDUSTRIES                ..... Respondent
                 Through: Mr. Anurag Lakhotia, Adv.
                           AND
+                WP(C) No.8659/2009

SHRI CHAND KIRAN                                                  ..... Petitioner
                               Through:      Mr. Sanjoy Ghose, Advocate
                                          Versus

M/S. SAWHNEY RUBBER INDUSTRIES             ..... Respondent
                 Through: Mr. Mr. Anurag Lakhotia, Adv.
                                             AND




W.P.(C) No.8648, 8649,8659 & 8660/09                                 Page 1 of 15
 +                              WP(C) No.8660/2009

SHRI BANS BAHADUR                                           ..... Petitioner
                Through:                 Mr. Sanjoy Ghose, Advocate

                                        Versus

M/S. SAWHNEY RUBBER INDUSTRIES            ..... Respondent
                 Through: Mr. Anurag Lakhotia, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. These four petitions by different workmen but of the same employer

impugn identical orders dated 25th July, 2007 of the Industrial Adjudicator

holding the domestic inquiry held prior to meting out the punishment of

dismissal to each of the workmen to have been held in accordance with law,

properly and the principles of fair play and the consequent identical awards,

all dated 3rd September, 2007 of the Industrial Adjudicator deciding the

references as to the validity of the orders of dismissal from service of each

of the workmen, in favour of the employer. Notices of the petitions were

issued. Pleadings have been completed, records of the Industrial Adjudicator

perused and the counsels heard.

2. The petitioners workmen were charged with having resorted to (i)

illegal strike and tool down strike w.e.f. 30th August, 1999 to 16th September,

1999; (ii) having abused, threatened and misbehaved on 2nd September, 1999

with and beaten up the Maintenance Engineer Shri Ajit Singh Bedi; (iii)

having broken the glasses of the time office, damaged the machines,

pipelines and caused other losses to the respondent employer on 8th

September, 1999 at 3:15 p.m. and having again assaulted the said Shri Ajit

Singh Bedi with bricks and iron and threatened his life. The petitioners

workmen were issued charge sheet and to which according to the respondent

employer, they failed to reply. Thereafter an Inquiry Officer (IO) was

appointed who reported, that the petitioners workmen failed to appear before

him inspite of repeated notices; that the notices were finally published in the

daily newspaper Raipco News Dainik dated 19th December, 1999 and the

copies of the newspaper also sent to the petitioners workmen but they still

failed to appear; that the IO thereafter proceeded against the petitioners

workmen ex parte and recorded the statements of four witnesses of the

respondent employer and on the basis of the evidence placed before him

held the charges against the petitioners workmen to have been proved and

amounting to misconduct under the certified standing order of the

respondent employer. The Disciplinary Authority of the respondent

employer has in its order recorded that a show cause notice was issued to the

petitioners workmen along with copy of the inquiry report and to which

response had been submitted by the petitioners workmen; however the said

response/explanation was not found such as to not justify the penalty of

dismissal from service proposed. Accordingly the services of the petitioners

workmen were terminated and cheques in payment of full and final

settlement amount sent.

3. On dispute being raised by the petitioners workmen, reference was

made to the Industrial Adjudicator. It was the case of the petitioners

workmen before the Industrial Adjudicator that the Supreme Court vide its

order dated 30th November, 1996 had directed closure of several polluting

industries in Delhi and of which the industry of the respondent employer

was one; that the respondent employer to get rid of the petitioners workmen

started adopting victimization techniques on one pretext or the other; that

without serving any charge sheet on them, they were informed of the

appointment of an IO; that inspite of demand the charge sheet was not

supplied to them; that the IO conducted the inquiry at Sarai Chowk, Amrit

Sarpanch, 12/5 Mathura Road near Petrol Pump, Faridabad instead of at the

factory of the respondent employer in which the petitioners workmen were

employed; that the inquiry was purposefully held outside Delhi to deprive

the petitioners workmen of participation therein; that the petitioners

workmen had repeatedly requested the IO to change the place of inquiry but

which was not acceded to; that the petitioners workmen had also sought

permission of the IO to be represented by one Shri Avdhesh Singh the

officer of the Union but the same was disallowed; that the IO had not acted

in a free and fair manner.

4. Needless to add that the respondent employer controverted the

aforesaid facts and reiterated the serious misconduct of violence and

manhandling of other employees by the petitioners workmen. It was further

pleaded that it was not possible to hold the inquiry peacefully in the

premises of the management for fear of violence and was thus held at

Badarpur Border on the main Mathura road which was easily accessible to

the petitioners workmen; that to and fro traveling expenses for attending the

inquiry proceedings were also offered to the petitioners workmen. It was

thus pleaded that the petitioners workmen were not prejudiced in any

manner from the place of inquiry.

5. The Industrial Adjudicator in the aforesaid state of pleadings framed a

preliminary issue as to the validity of the domestic inquiry. Vide order dated

25th July, 2007, the Industrial Adjudicator on examination of the deposition

of the petitioners workmen and the two witnesses of the respondent

employer and the record of the inquiry proceedings held:-

a. that the petitioners workmen did not appear before the IO

inspite of sufficient notice;

b. that though the petitioners workmen had argued inability

to participate in the inquiry at Faridabad for fear of

insecurity but their pleading was that they had wanted to

be represented by Shri Avdhesh Singh who was neither

the employee of the management nor a co-worker and

which representation was wrongfully denied;

c. that the real reason for the petitioners workmen not

participating in the inquiry was not that it was outside the

State but because of the fact that they were not allowed to

be represented by Shri Avdhesh Singh;

d. that there was nothing wrong with the decision of the IO

of denying representation by Sh. Avdhesh Singh as the

certified standing orders of the respondent employer

nowhere provided that in a domestic inquiry workman

can insist upon being represented by an outsider;

e. that the petitioners workmen were not prejudiced in any

manner by holding of the inquiry at Faridabad especially

when to and fro travelling expenses were offered to

them;

f. Faridabad is not very far from the place of appointment;

g. the plea of the petitioners workmen of being prevented

from joining the inquiry at Faridabad was not supported

by any material on record and was purely imaginative;

h. that the IO at every stage gave sufficient opportunity to

the petitioners workmen to present their defence;

i. Four witnesses of the respondent employer had appeared

before the IO and had proved the charges;

               j.      no case of bias of the IO was made out;

               k.      no case of violation of principles of natural justice was

                       made out.

The Industrial Adjudicator accordingly decided the issue of the

validity of the domestic inquiry in favour of the respondent employer.

6. The Industrial Adjudicator having held the domestic inquiry to be

valid, proceeded to examine whether the punishment imposed on the

petitioners workmen was justified or not and held that the charges proved in

the domestic inquiry of causing violence, manhandling/beating the officials

of the management, causing of illegal strike, preventing other co-workers

from doing the work under threat etc. constituted grave misconduct

subversive of discipline required to be maintained and thus did not find any

case for interference in the punishment to have been made out.

7. The petitioners workmen before this Court have pleaded that in the

back drop of the judgment of the Apex Court regarding closure of polluting

industries, the employer had extricated resignation of 700 workers; that in a

writ petition instituted by the employees, the Supreme Court had vide order

dated 27th August, 1997 issued directions for the employees to resume

employment; that the petitioners workmen herein were also so reinstated in

accordance with the order of the Supreme Court; that the petitioners

workmen were however suspended and charge sheeted by way of retaliation;

that it was the management which had brought gundas into the premises;

that the petitioners workmen had replied to the charge sheet denying the

charges; that the IO was an Advocate and a management consultant. It is

contended by the petitioners workmen that since the IO appointed was an

Advocate and the workmen were illiterate, they ought to have been granted

permission to be represented by a Union representative. It is further

contended that the employment being at Delhi, the domestic inquiry could

not be held in another State i.e. Faridabad. It is yet further contended that the

inquiry was sham in as much as ex parte evidence of as many as four

management witnesses in each case including putting of exhibit marks on

hundreds of documents was all accomplished within a few minutes.

8. The counsel for the petitioners workmen has also submitted that the

respondent employer has resorted to such proceedings against the petitioners

workmen to save payment of compensation as directed by the Supreme

Court in M.C. Mehta's case to workmen of polluting industries which were

directed to be closed down. It is argued that the petitioners workmen would

also be satisfied if paid the said compensation.

9. Though the counsel for the respondent employer did not make oral

submission but has subsequently filed written arguments along with copies

of judgments relied upon. It is inter alia contended therein that the

respondent employer was not required to pay compensation to any workman

as directed by the Supreme Court since the industry of the respondent did

not have to be closed down, having been issued fresh licences after fulfilling

all requirements relating to pollution. Else it is contended:-

i. that no prejudice has been caused to the petitioners

workmen by holding the inquiry at Faridabad particularly

when the petitioners workmen did not even choose to

participate in the inquiry. Reliance is placed on State

Bank of Patiala v. S.K. Sharma 1997 LLR 268;

ii. it is contended that the factory premises were not

suitable/conducive for holding the inquiry because of the

tense atmosphere prevailing therein. Reliance in this

regard is placed on Sandvik Asia Ltd. v. Maruti

Mahlpati jagadale 2002 LLR 1138 (Bombay) and on

Reform Flour Mills Pvt. Ltd. v. First Labour Court,

West Bengal 1962 (11) LLS 431 (Calcutta);

iii. that the petitioners workmen themselves were residing in

Uttar Pradesh and working in Shahdara, Delhi and thus

ought not to have had any objection to the inquiry at

Faridabad border;

iv. the findings of the Industrial Adjudicator of the domestic

inquiry having been conducted in accordance with

principles of natural justice and in a fair manner are

findings of fact, non interfereable in exercise of powers

of judicial review unless shown to be perverse.

10. From the arguments raised only two questions need to be determined

by this Court. Firstly, whether the view taken by the Industrial Adjudicator

as to the place of inquiry and secondly whether the denial of representation

to the petitioner workmen through a Union representative instead of through

an employee of the respondent employer has resulted in any error in the

finding as to the validity of the inquiry.

11. The counsel for the petitioners workmen has argued that owing to the

imminent threat of closure of the industry and disturbed conditions

prevailing in the factory premises, none of their colleagues were willing to

represent them in the inquiry proceedings and they could only fall back on

the Union representative in this regard being themselves incompetent to

defend the inquiry;

12. As aforesaid, it has been found by the Industrial Adjudicator that the

non-participation by the petitioners workmen in the domestic inquiry was

not owing to the place of inquiry being at Faridabad but owing to the

petitioners workmen having been refused representation through the Union

representative. A perusal of the depositions before the Industrial Adjudicator

also supports the said fact. It is not the case of the petitioners workmen that

they at any point of time expressed reservation as to participation in the

inquiry owing to being held at Faridabad or faced any difficulty therein.

Thus the said argument, on facts is of no avail. The only thing which thus

needs to be adjudicated is whether refusal of participation through the Union

representative was bad.

13. The counsel for the respondent employer has along with his written

submissions filed copies of following judgments:-

A. Crescent Dyes & Chemicals Ltd. V. Ram Naresh

Tripathi 1993 LLR 97 where the Supreme Court held the

provision in the standing orders permitting the employee

to be represented in the domestic inquiry only by a

colleague or a workman working in the same department

as himself as not violative of the principles of natural

justice. It was held that a delinquent has no right to be

represented through counsel or agent unless the law

specifically confers such a right and the rule of natural

justice in so far as delinquent's right of hearing is

concerned cannot and does not extend to a right to be

represented through counsel or agent.

B. S.L.Tagra v. New India Assurance Co. Ltd. 1998 LLR

327 where a Division Bench of this Court also held that a

delinquent has no right to be represented through counsel

or agent unless law specifically conferred such right.

14. Notice in this regard may also be taken of Bhagat Ram v. State of

Himachal Pradesh (1983) 2 SCC 442. It was held that where case against

the workman is handled by trained prosecutor, the same by itself is a good

ground for allowing the workman to engage legal practitioner to defend him

lest the scales would be weighed against him. It was held that refusal to

grant such request would be violative of the principles of natural justice. I

have wondered whether owing to the IO in the present case being an

Advocate, any case of denial of natural justice for the reason of refusal to the

petitioners workmen of participation through Union representative is made

out. I am however not able to justify the same in the facts of the present

case. The petitioners workmen as aforesaid utterly failed to participate in the

domestic inquiry. They did not need such assistance in filing their reply

before the IO or in filing their affidavits by way of evidence. Legal

assistance if at all was required by them only for cross examination of the

witnesses of the employer. The entire conduct of the petitioners workmen in

the present case is indicative of their intent not to participate in the inquiry

proceedings and it appears that only the excuse of having not been allowed

participation through the Union representative is being used. I am thus

unable to find any error in the orders of the Industrial Adjudicator on this

count also.

15. Mention may also be made of the Dunlop Rubber Co. v. Workmen

AIR 1965 SC 1392 also laying down that there is no right of representation

through Union as such unless the company by its standing orders recognizes

such right and refusal to allow representation by Union does not vitiate the

proceedings.

16. The Supreme Court in The Management of National Seeds

Corporation Ltd. v. K.V. Rama Reddy (2006) 11 SCC 645 also reiterated

that the law in this country does not concede an absolute right of

representation to an employee in domestic enquires as part of his right to be

heard and there is no right of representation by somebody else unless the

rules or regulations and standing orders if any specifically recognize such a

right and provide for such representation.

17. Accordingly no error is found in the orders/award of the Industrial

Adjudicator impugned in these petitions and the petitions are dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW, J

OCTOBER 3, 2011 pp..

(corrected and released on 10 th January, 2012).