TMI Blog1982 (11) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant as Presenting Officers before the Enquiry Officer. A copy of this letter was endorsed to the first respondent with a foot note that his request for permitting him to appear through a legal practitioner in the enquiry has been rejected by the Chairman. As a sequel to the rejection of his request, the first respondent out of compelling necessity submitted a request that Shri V.V. Nadkarni be permitted to appear in his defence which appears to have been granted. The enquiry opened on April 13, 1976. On May 8, 1976 Bombay Port Trust Employees Regulations 1976 came into force. Regulation 12(8) reads as under : 12(8) : The employee may take the assistance of any other employee or, if the employee is a class III or a Class IV employee, of an Office Bearer as defined in Clause (d) of Section 2 of the Trade Unions Act, 1926 (16 of 1926) of the union to which he belongs, to present the case on his, behalf, but may not engage a legal practitioner for the purpose unless the said 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. 4. It may be mentioned tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al jagger-naught should hear the delinquent employee in person and in such an informal enquiry, the delinquent officer would be able to defend himself. The essential assumption underlying this belief is questionable but it held the field for some time and there are decisions of this Court in Brooke Bond India (Pvt.) Ltd. v. Subba Raman (S) and Anr. [1961] 2 L L J 417 and Dunlop Rubber Co. v. Workmen (1965)ILLJ426SC , in which it has been held that in a disciplinary enquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and therefore as a corollary it cannot be said that in such an enquiry against a workman natural justice demands that he ought to be represented by a representative of his Union much less a member of the legal profession. While buttressing this approach, an observation was made that unless rules prescribed for holding the enquiry do not make an enabling provision that the workman charged with misconduct is entitled to be represented by a legal practitioner, the Enquiry Officer and/or the employer would be perfectly justified in rejecting such a request as it would vitiate the informal atmosphere of a domestic tribunal. A strikin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re can be very serious charges and adverse verdict may completely destroy the future of the delinquent employee. The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Such an enquiry is generally treated as a managerial function and the Enquiry Officer is more often a man of the establishment. Ordinarily he combines the role of a Presenting-cum-Prosecuting Officer and an Enquiry Officer a Judge and a prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a domestic tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a domestic tribunal. We have moved far away from this stage. The situation is where the employer has on his payrolls labour officers, legal advisers lawyers in the garb of employees and they are appointed Presenting-cum-Prosecuting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself. Now if the rules prescribed for such an enquiry did not place an embargo on the right to the delinquent employee to be represented by a legal practitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senting cum-Prosecuting Officers. What does this signify ? The normal inference is that according to the Chairman of the appellant the issues that would arise in the enquiry were such complex issues involving intricate legal propositions that the Enquiry Officer would need the assistance of Presenting-cum-Prosecuting Officers. And look at the array of law Officers of the appellant appointed for this purpose. Now examine the approach of the Chairman. While he directed two of his law officers to conduct the enquiry as prosecutors, he simultaneously proceeds to deny such legal representation to the delinquent employee when he declined the permission to the first respondent to appear through a legal practitioner. Does this disclose a fair attitude or fair play in action? Can one imagine how the scales were weighted and thereby tilted in favour of the prosecuting officer. In this enquiry the employer would be represented by two legally trained minds at the cost of the Post Trust while the first respondent was asked either to fend for himself in person or have the assistance of another employee such as Nadkarni who is not shown to be a legally trained person but the delinquent employee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fetters the claim to appear through a legal practitioner. Negativing this contention, this Court held that the fact that the case against the appellant was being handled by a trained prosecutor was by itself a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him. This conclusion was recorded after reference to the earlier decisions in Brooke Bond India (Pvt) Ltd. v. Subba Ramman (S) and Anr. and Dunlop Rubber Co. v. Workmen. Reference was made to Pet's case, referred to earlier, but it is observed that this case has not commended itself to this Court. The earlier cases of this Court were distinguished. In our view we have reached a stage in our onward march to fairplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. This view has been taken by a learned Single Judge and while dismissing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant. The unjustly refused request was already there and obligation under the regulation coupled with fairplay in action demanded that the employer should have suo motu reviewed his order refusing the request. In fact one can go so far as to say that the Enquiry Officer in order to be fair and just, whenever he finds the employer appointing legally trained persons as Presenting cum-Persecuting Officers must enquire from the delinquent employee before commencement of enquiry whether he would like to take assistance of a legal practitioner. The option then is with the delinquent employee. In this connection, we would like to refer to a weighty observation on this point where despite constitutional inhibition this Court conceded such a right. In K. Roy v. Union of India 1982CriLJ340 the learned Chief Justice while rejecting the contention that a detenu should be entitled to appear through a legal adviser before the Advisory Board observed that Article 22(3)(b) makes it clear that the legal practitioner should not be permitted to appear before an Advisory Board for any party. While noting this constitutional mandate, the learned Chief Justice proceeded to examine, what would be the ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice on the ground that the first respondent was not afforded a reasonable opportunity to defend himself, the High Court was justified in quashing the order of dismissal. The sequel to our order would certainly mean that it would be open to the appellant to continue the enquiry. But it must be expedited. We therefore direct that while continuing the enquiry, it will be open to the appellant to treat the examination-in-chief of each witness already recorded during the enquiry as proper but all witnesses examined at the enquiry will have to be offered to the first respondent for cross-examination and the respondent would be entitled to appear through a lawyer of his choice and even examine witnesses and participate in the enquiry. The earlier cross-examination may also be retained as part of the record. Both sides would be entitled to adduce fresh evidence both document and oral, if considered necessary. The first respondent would be entitled to call upon the appellant to produce any document which he desires for effective adjudication subject to the decision of the Enquiry Officer about its relevance and necessity for efficient and just disposal of the enquiry. As the order of dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
