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2015 (6) TMI 476 - CALCUTTA HIGH COURT

2015 (6) TMI 476 - CALCUTTA HIGH COURT - TMI - Dismissal of employee after a domestic enquiry was held by the management - Validity of domestic enquiry - Held that:- The object of holding an enquiry proceeding is to give the delinquent employee a reasonable opportunity to prove his answers and to defend himself against the charges levelled against him. A domestic enquiry must be in conformity with the rules of natural justice. The rules of natural justice which are at present confined to the pro .....

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yee since a person cannot be a judge in his own cause. However, even an Enquiry Officer is at liberty to put questions to the witnesses and that per se would not vitiate the proceedings. - The Enquiry Officer may evolve his own procedure in the absence of any guidelines but the procedure must be fair, free from arbitrariness and in conformity with the principles of natural justice.

Mere participation of the Presenting Officer as a witness in a domestic enquiry is not contrary to the p .....

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ee, Adv. For the State : Mr. Partha Bhanja Chowdhury, Adv., Mr. Rani Kr. Dubey, Adv. JUDGMENT This matter is before us by reason of a reference made by a Division Bench of this Court by an order dated 15th December, 2011 passed in the course of hearing an appeal against the judgment and order dated 7th April, 2005 passed by the Ld. Single Judge in W.P No. 2392 of 2001. (2) By an order dated June 25, 1999 the Government of West Bengal had referred an industrial dispute between the appellant and o .....

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Tribunal relied on two decisions of this Court:- (i)-Sarajit Coomer Mazumder-vs.-Calcutta Dock Labour Board & Ors. reported in Cal. LT. 1998 (1) HC 431. (ii) Mohd. Miya v. State of West Bengal & Ors. reported in 2000 (86) FLR 1. (3) The appellant challenged the said order of the Ld. Tribunal by way of a writ petition being WP NO. 2392 of 2001. (4) The Ld. Single Judge held that as the Presenting Officer appeared as a witness in the domestic enquiry, the principle of natural justice was .....

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fficer as a witness in the enquiry, rendered the enquiry and the entire proceedings inoperative and without jurisdiction. In Mohd. Miya (supra) the aforesaid principle of law was reiterated and Sarajit Coomer Mazumder (supra) was relied upon. (7) However, the Division Bench was faced with a dilemma since two earlier Division Bench judgments of this Court were placed before it, which came to diametrically opposite conclusions. (8) The Ld. Advocate for the delinquent employee relied on a decision .....

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what was submitted by him was taken as Examination-in-Chief and the delinquent was asked to cross-examine him. This was a peculiar method adopted by the authorities in conducting the enquiry which was unknown in law. (9) Ld. Counsel for the appellant on the other hand relied on another Division Bench decision of this Court in the case of Life Insurance Corporation of India Ltd.-vs.-Presiding Officer, Central Labour Court reported in 2007 (3) CHN 558. In this case the Division Bench took a diamet .....

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nce. In the instance case, the Presenting Officer was an employee of the appellant. He was representing the appellant before the Enquiry Officer. Hence, he was entitled to examine himself. We do not find anything wrong on that score." (Italic is our own) (10) The earlier Division Bench decision in the case of Bharat Cocking Coal (supra) was not cited before the later Division Bench which decided the case of Life Corporation of India (supra). However, there is a direct conflict between the s .....

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inion on the question referred to us, we may note the views of some other High Courts in this regard. (12) In the case of Management of Glaxo India Ltd., Madras-vs.- Presiding Officer, Labour Court, Guntur reported in 1993 (1) LLJ 626, the Andhra Pradesh High Court held that there was nothing wrong or irregular in the Presenting Officer going to the box as a witness for the management. In paragraph 19 of the judgment the High Court observed as follows-: "19. Secondly, the Labour Court based .....

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s cannot be a Presenting Officer". But this decision is distinguishable from the facts of the present case, inasmuch as in the Calcutta case, the person acted in three roles - (i) Investigating Officer, (ii) Presenting Officer and (iii) Witness. Such is not the situation in the present case. Mr. Koteswara Rao was examined only to prove charge No. 2 and also acted as a Presenting Officer. Above all, except making bald allegation that the enquiry is vitiated, it is not shown by the workman as .....

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lained, in the position of a complainant and since in a domestic enquiry no counsel can be engaged G. G. Naik was bound to conduct the enquiry before the Enquiry Officer. Since K. G. Naik had come and explained to him in the first instance he (G. G. Naik) had gone into the witness box in support of his own complaint and thereafter he continued to examine the witnesses in support of his complaint. This is normally done where legal assistance is not available and we can see nothing wrong in princi .....

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bet esse judex in propria causa (no man shall be a judge in his own cause). We do not find the relevance of this decision in the context of the present reference. (14) Another decision of the Hon'ble Supreme Court in the case of Rattan Lal Sharma-vs.-Managing Committee, Dr. Hari Ram (Co- Education) Higher Secondary School reported in AIR 1993 SC 2155 was cited before us. In this case also a member of the Enquiry Committee deposed as a witness in support of the management's case. The Supr .....

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ussed the meaning of 'natural justice' and the 'useless formality theory' i.e. whether Courts should interfere in a case of breach of natural justice even if it is clear that even if principles of natural justice were complied with, the aggrieved party would not succeed. In other words, it would be a useless formality to set aside the impugned order or decision. (16) In our view, the fact that the complainant acted as the Presenting Officer by itself will not vitiate a domestic e .....

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as a witness for proving the charges. This is also the view of the Andhra Pradesh High Court expressed in the case of Management of Glaxo India Ltd. (supra). In a domestic enquiry the management has the right to present its case against the delinquent employee. This is done through the Presenting Officer. His job is to adduce evidence in support of the charges. Generally, he is not a witness. But if he also appears as a witness on behalf of the management, he has to be offered for cross-examina .....

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ector, LIC of India reported in 1985 Lab IC 1367, bias of a Presenting Officer in a departmental enquiry is not very relevant because the control of the proceedings is primarily with the Enquiry Officer and it is he who has to guard the interest of the delinquent also. (18) As has been held by the Hon'ble Apex Court in the case of Sur Enamel and Stamping Workers Ltd.-vs.-The Workman reported in AIR 1963 SC 1914, the requisite of a valid domestic enquiry are (i) the employee proceeded against .....

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t. (19) Ultimately the entire issue boils down to the question of prejudice. If the delinquent employee has suffered any prejudice by reason of the Presenting Officer acting as a witness on behalf of the management, the enquiry proceeding will possibly be held to be vitiated. The prejudice must be real prejudice as opposed to formal prejudice, affecting some substantial legal right of the employee. Naturally, the burden is on the employee to establish such prejudice. (20) The object of holding a .....

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y Officer in a domestic enquiry are not prescribed in any rules framed under any statute. Some of the Standing Orders have prescribed certain guidelines on the procedure to be followed in a domestic enquiry. Similarly, Central Civil Service (Classification, Control and Appeal) Rules prescribe certain guidelines on the procedure to be followed. The Enquiry Officer may evolve his own procedure in the absence of any guidelines but the procedure must be fair, free from arbitrariness and in conformit .....

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