Supreme Court of India
CRESCENT DYES AND CHEMICALS LTD.versusRAM NARESH TRIPATHI
- Citation
- 1992 INSC 343
- Decided
- 16 December 1992
- Disposal
- Appeal(s) allowed
- Bench
- A M AHMADI
Holding
A workman may be represented in a domestic enquiry only by a clerk or workman from the same department, or by an officer, staff‑member or a union member authorised by the State Government, and refusal to allow an un‑authorised union officer does not violate natural justice.
Summary
Ram Naresh Tripathi, a workman, was charge‑sheeted for misconduct and sought to be represented at his domestic enquiry by Talraja, an office‑bearer of a Mazdoor Union to which he belonged. The enquiry officer refused, stating that Talraja was not a member of a recognised or unrecognised union operating in the company and was not authorised by the State Government under Section 22(ii) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, nor did the certified Standing Orders permit such representation. The workman’s dismissal was challenged as an unfair labour practice violating natural justice. The High Court quashed the dismissal, but the Supreme Court held that the Act and the Standing Orders legitimately restrict representation to a clerk or workman from the same department, or to an officer, staff‑member or union member authorised by the State Government, and that refusing Talraja did not breach natural justice. Consequently, the employer’s appeal was allowed and the High Court order set aside.
Issues considered
- Whether Section 22(ii) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 permits a delinquent workman to be represented by an office‑bearer of a trade union that does not function in the employer’s establishment.
- Whether the certified Standing Orders, which limit representation to a clerk or workman from the same department, conflict with the principles of natural justice.
- Whether refusal to allow such representation amounts to an unfair labour practice under Item 1(f) of Schedule IV of the Act.
Legislation cited
Subjects
representationdomestic enquirynatural justiceunfair labour practicetrade union recognitionstanding ordersSection 22Maharashtra Actindustrial law
Judgment
CRESCENT DYES AND CHEMICALS LTD. A
v.
RAM NARESH TRIPATHI
DECEMBER 16, 1992
[A.M. AHMADI, M.M. PUNCHHIAND K. RAMASWAMY, JJ.] B
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971-{)bject, purpose and application of.
Maharashtra Recognition of Trade Unions and Prevention of Unfair C
Labour Practices Act, 1971-Section 22(ii)--Enquiry under-Whether delin-
quent workman can be represented by an agent of his own chotce, when the
agent an office bearer of a trade union not of the employees of the Com-
pany-Representation of delinquent under the Certified Standing Orders of
the Act-Legality of-Whether Section 22(ii) or the Standing Order conflicts
with the principles of natural justice. D
The workman - respondent was charge-sheeted on November 29,
1~80 for misconduct, and a domestic enquiry was ordered by appointing
an enquiry officer.
The respondent requested the enquiry officer to permit him to be
E
defended by one Talraja, an office-bearer of a Mazdoor Union of which the
respondent was a member. He contended that Talraja was authorised to
defend members of his Union at domestic enquiries.
The enquiry officer did not permit the respondent to be represented F
and defended by Talraja, because he was not a member of the recognised
or the unrecognised union functioning in the establishment, where the
respondent was employed.
Thereupon the respondent did not participate in the enquiry. The
enquiry officer concluded the enquiry ex-parte. The respondent was dis- G
missed from service by an order dated January 28, 1981. The respondent
filed a complaint in the Labour Court making a grievance that the
employer was guilty of unfair labour practice enumerated at Item l(f) of
Schedule IV to the Maharashtra Recognition of Trade Unions & Preven-
tion or Unfair Labour Practices Act, 1971, as he was not allowed to be H
559
560 SUPREME COURT REPORTS 11992) SUPP. 3 S.C.R.
A defended by a person of his own choice in violation of the principles of.
natural justice.
The Labour Court dismissing the complaint held that the respon-
dent was not entitled to be defended by Talraja, who was not a member of
either a recognised or a non-recognised union functioning within the
B undertaking of the appellant-company, and that the dismissal order did
not suffer from any violation of the principles of natural justice.
The respondent tiled a Revision Application in the Industrial Court,
which was also dismissed.
c Under Article 227 of the Constitution, the respondent moved the
. High Court.
The High Court quashed the order of dismissal as violative of the
principles of natural justice and remitted the matter to the Labour Court
D with a direction to decide on merits-whether or not the misconduct alleged
against the respondent was proved.
The High Court held that refusal to permit Talraja to defend the
respondent amounted to unfair labour practice within the meaning of
Item 1 (f) of Schedule IV to the Act as it violated the principles of natural
E justice.
The employer-appellant preferred this appeal by special leave
against the order passed by the High Court.
The respondent contended that the limitation imposed by the Stand-
F ing Orders and Section 22(ii) of the Act runs counter to the prin~iples of
natural justice, and that it violated the right to hearing and a fair trial
and, must, therefore, be ignored.
Allowing the appeal of the employer, this Court
G HELD: 1.1. The Maharashtra Recognition of Trade Unions· &
Prevention of Unfair Labour Practices Act, 1971 was enacted to provide
for the recognition of trade unions for facilitating collective bargaining for
certain undertakings; to confer certain powers on unrecognised unions; to
define and provide for the prevention of certain unfair labour practices;
H to constitute courts for carrying out the purposes of according recognition
\
l.RESCENT DYES & CHEMICALS LTD. v. R.N. TRIPATIII 561
to trade unions and for enforcing the provisions relating to unfair prac- A
tices and to provide for matters connected with the purposes aforesaid.
f566-C]
1.2. It is clear from the scheme of the Act that with a view to
facilitating collective bargaining in certain under-takings, the concept of B
recognition of trade unions was introduced and certain obligations/rights
came to be imposed/conferred on the recognised unions. Certain powers
have also been conferred on unrecognised unions by the Act. (568-H]
1.3. The Act was made applicable toJndustries to which the Bombay
Industrial Relations Act, 1946 applied and also to any industry defined in C
clause(j) of Section 2 of the Industrial Disputes Act, 1947, except where
otherwise provided. The provisions of the Act apply to the appellant-com-
pany. (566-D]
2.1. While Section 20(1)( d) of the Act confers a right on the authorised
officers, staff-members and members of the recognised union to represent a D
delinquent in any domestic or departmental enquiry held by the employer, in
the case of unfair labour practices failing within items 2 and 6 of the Chapter
IV of the Act, the right is further restricted, in that, in the case of employees
governed by the Industrial Disputes Act they would have to appear in person
and conduct the proceeding relating to such unfair labour practices in the E
absence of a recognised union. (567-C,D]
2.2. In the case of employees governed by the Industrial Disputes
Act, only th~ recognised union can represent them if the complaint is in
regard to the unfair labour practices stated in the two entries and in the
case of employees who are governed by the Bombay Industrial Relations F
Act, only the representatives specified in Section 30 of the Act can repre·
sent the employees if the alleged unfair labour practices relate to the two
entries. (569-G]
2.3. In the case of an unrecognised union, officers, staff-members
and members of the union authorised by the State Government shall have G
a right to appear on behalf of any employee in domestic or departmentQI
enquiry held by the employer. [569-A]
2.4. In the case of an employee facing a domestic or departmental
enquiry, officers, office staff-members or members of a recognised or H
562 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A unrecognised union may appear and act on behalf of the delinquent
provided they are authorised by the State Government. [570-C]
.
2.S. In the present case, Talraja claimed to be an office bearer of a
trade union which did not have employees working in the appellant's·
establishment (except the delinquent) as its members. Since Talraja was
B not authorised by the State Government he could not represent the delin-
quent at the domestic or departmental enquiry under Section 22(ii) and
hen~ the Enquiry officer was justified in law in refusing him permission
to represent the delinquent. (570-E]
C 2.6. Once the Standing Orders get in<:orporated in the contract of
service both the employerand the employee are bound by those terms and the
employee cannot be heard to contend that notwithstanding the same he
would insist on an outsider representing him unless any special statute
perniits him such representation. There is no such statute which has· the
efred of overriding the Standing Order~ except the Act, Section 22(ii)
D wheftOfenlarges the scope and permits an authorised officer, staff-member
or member of an unrecognised union to represent him. (570-H]
2.7. Under the Certified Standing Orders the acts or omissions
constituting misconduct have been enumerated in Standing Order No. 25
and Standing Order No. 26(2) entitles a delinquent 'to be defended by a
E clerk or a workman working in the same department as himself.' Since
. ·Talraja was not a clerk or workman working with the delinquent in his
department, even under the Standing Orders he was not entitled to repre-
sent the delinquent. (570-F]
2.8. The law in India also does not concede an absolute right of
F representation as an aspect ofthe right to be heard, one of the elements of the
principle of natural justice. There is no right to representation as such
unless the company by its Standing Orders recognises such a right. (575-B]
2.9. The right to be represented through counsel or agent can ht
G restricted, controlled or regulated by statute, rules, regulations or Stand-
ing Orders. A delinquent bas no right to be represented through counsel
or agent unless the law specifically confers such a right. [577-D]
2.10. However, if the charge is of a serious and complex nature, the
delinquent's request to be represented through a counsel or agent could
H be conceded. (57'&-H]
...
CRESCENT DYES & CHEMICALS LTD. v. R.N. TRIPATHI 563
1.11. The requirement of the rule of natural justice insofar as the A
delinquent's right of hearing is concerned, cannot and does not extend to
a right to be represented through counsel or agent. [577-E]
2.U. In the instant case the delinquent's right to representation was
regulated by the Standing Orders which permitted a clerk or a workman
working with him in the same department to represent him and this right · B
stood expanded on Sections 21 and 22(ii) permitting representation
through an officer, staff-member or a member of the Union, albeit on being
authorised by the State Government. The object and purpose of such
provisions is to ensure that the domestic enquiry is completed with
despatch and is not prolonged endlessly. Secondly, when the person C
defending the delinquent is from the department or establishment in
which the delinquent is. working he would be well conversant with the
working of that department and the relevant rules and would, therefore,
be able to render satisfactory service to the delinquent. Thirdly, not only
would the entire proceedings be completed quickly but also inexpensively.
It is, therefore, not correct to contend that the Standing Order or Section D
22(ii) of the Act conflicts with the principles of natural justice. [577-F-H]
Sudhir Chandra Sarkar v. Tata Iron & Steel Co. Ltd., (1984] 2 SCR
325 at 336; Maclean v. The Workers' Union, (1929) 1Ch.602 at 621; Pett v.
Greyhound Racing Association Ltd., (1968) 2 All. E.R. 545 (No. 1) (1969) E
1Q.B.125; Jackson & Co. v. Napper, (1887) 35 Ch.D. 162 at 172 ;The Queen
v.Assessment Committee of St. Mary Abbotts, Kensington, (1891) 1Q.B.378;
University of Ceylon v.E.F.W. Fernando, (1960) 1 W.L.R. 223; Enderby
Town Football Club Ltd. v. The Football Association- Ltd, (1971) Ch.
I
591;
Regina v. Race Relations Board, Ex-parte Selvarajan, (1975) 1W.L.R.1686;
Maynard v. Osmond, (1977) Q.B. 240; Kalindi (N) & Ors. v. Tata Locomo- F
tive & Engineering Co. Ltd., JamshetJPur, (1960] 3 SCR 407; Brooke Bond
India (P) Ltd. v. Subba Raman (S) & Anr., (1961) 2 LW 417 and The
Dunlop Rubber Co. v. Workmen, (1965] 2 SCR 139, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5358 of G
1992.
From the Judgment and Order dated 9/10-7-1991 of the Bombay
High Court in Writ Petition No. 2715 of 1983.
Ashok H. Desai, S. Ganesh, KJ. John, Ms. Deepa Dixit, Baiju H
564 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
A Bhagat (for Mis Swarup John & Co.) for the Appellant.
N.B. Shetye and AM. Khanwilkar for the Respondent.
The Judgment of the Court was delivered by
AHMADI, J. Specialleave granted.
B
The short question. which falls for determination in this appeal is
whether a delinquent is entitled to be repres~nted by an office bearer of
another Trade Union, who is not a member of either a recognised union
or a non-r¢,cogpiseci union functioning within the undertaking in which the
c delinquent is employed, notwithstanding the statutory limitation contained
in the certified Standing Orders and Clause (ii) of Section 22 of the
Maharashtra Recognition of Trade Unions & Prevention of Unfair· Labour
Practices Act, 1971 (hereafter called 'the Act'). The High Court has
answered this question in the affir~ative on the following line of reasoning:
D "........for the purpose of the domestic enquiry to be fair and
impartial .it ·is:·".ery much necessary that the .delinquent
workman be allowed to be represented by a person of his
choice and if an employee is refused, such a fair oppor-
tunity of putting forward his case by a representative of his
E choice, even if the representative is an outsider, it could be
well said that the principles of natural justice were violated.
There is nothing in Section 22....to deny such a basic and
fundamental right to a workman. Section 22 only provides
for the rights of an unrecognised union. The enquiry officer
in our case, therefore, violated the principles of natural
justice in not allowing the petitioner to be defended by
Talraja. If he was allowed to be defended by.Talraja, no
prejudice would have been caused to the third respondent"
(the appellant herein).
G On this line of reasoning the High Court quashed the order of dismissal
as violative of the principles of natural justice and remitted the matter to
the Labour Court with a direction to permit both parties to adduce
whatever evidence they may desire to place on record and decide on merits
whether or not the misconduct alleged against the delinquent was proved.
H Feeling aggrieved by the said order passed by the High Court, the
CRESCENT' DYES & CHEMICALS LTD. v. RN. TRIPATIII [AHMADI, J.J 565 '
original respondent No. 3, M/s. Crescent Dyes & Chemicals Ltd., the A
employer, has preferred this appeal by special leave. The facts which we
may notice for the disposal of this appeal are as under:
The workman, Ram Naresh Tripathi, was charge-sheeted on Novem-
ber 29, 1980 for misconduct. A domestic enquiry was ordered and an B
enquiry officer was appointed to enquire into the alleged acts of miscon-
duct of the delinquent. The delinquent requested the enquiry officer to
permit him to be defended by one Talraja who claimed to be an office
bearer of the Bombay Mazdoor Union of which the delinquent was a
member. The delinquent contended before the eriquiry offjcer that the said
Talraja was authorised to defend members of his union at domestic en- C
quiries but the enquiry officer did not permit the delinquent to be repre-
sented and defended by the said Talraja since he was not a member of the
recognised union or the unrecognised union functioning in the employer's
establishment. Thereupon the delinquent did not participate in the enquiry
and the enquiry officer concluded the enquiry ex-parte. That led to -the D
ultimate dismissal of the delinquent by an order dated January 28, 1981.
The delinquent thereupon filed a complaint (ULP) No. 33. of 1981 in the
Labour Court, Bombay making a grievance that the employer was guilty of
unfair labour practice enumerated at Item l(t) of Schedule IV to the Act,
in that, he was not allowed to be defended by a person of his own choice
in violation of the principles of natural justice. Item 1(t) of Schedule IV E
deals with discharge or dismisal of employees in utter disregard of the
principles of natural justice in the conduct of a domestic enquiry. The
Labour Court relying on Section 22(ii) of the Act concluded that the'
delinquent was not entitled to be defended by Talraja who was not a
member of either a recognised or a non-recognised union functioning F
within the undertaking of the appellant-company. The Labour Court,
therefore, came to the conclusion that the dismissal order did not suffer
from any violation of the principles of natural justice and dismissed the
complaint on June 30, 1982. The delinquent filed a Revision Application
(ULP) No. 28 of 1982 in the Industrial Court, Bombay. The Industrial G
Court agreed with the view taken by the Labour Court and found no merit
in the Revision Application and dismiss,ed the same by its order dated June
14, 1983. Thereupon the delinquent moved the High Court under Article
227 of the Constitution. The High Court, for the reasons extracted
hereinabove, came to the conclusion that refusal to permit Talraja to
defend the delinquent amounted to unfair labour practice within the H
566 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.
A meaning of Item l(f) of Schedule IV to the Act as it violated the principle
of natural justice. The High Court, therefore, quashed the judgments of
the authorities below and remitted the matter to the Labour Court for
disposal in accordance with law after permitting both the sides to adduce
evidence on their behalf. The High Court directed the Labour Court to
determine if the charges of misconduct levelled against the delinquent were
B proved on merits on the evidence that may be placed before it and to
dispose of the complaint of unfair labour practice on the findings so
recorded latest by the end of December, 1991. It is the correctness of this
order of the High Court which is impugned in this appeal.
C The Act was enacted to provide for the recognition of trade unions
for· facilitating collective bargaining for certain undertakings; ·to confer
certain powers on unrecognised unions; to define and provide for the
prevention of certain unfair labour practices; to constitute courts for
carrying out the purposes of according recognition to trade unions and for
D enforcing the provisions relating to unfair practices and to provide for
matters connected with the purposes aforesaid. The Act was made ap-
plicable to industries to which the Bombay Industrial Relations Act, 1946
applied and also to any Industry defined in clause G) of Section 2 of the
Industrial Disputes Act, 1947, except where otherwise provided. It is an
admitted fact that the provisions of the Act apply to the appellant-com-
E pany. The expression 'recognised union' defined in Section 3(13) means a
union which has been issued a certificate of recognition under Chapter III.
Chapter III comprises Section 10 to 18. Section 11 provides that any union
which has for the whole of the period of six calendar months immediately
preceding the calendar month in which it has applied under this section a
F membership of not less than 30% of the total number of the employees
employed in any undertaking, may apply in the prescribed form to. the
Indlistrial Court for being registered as a recognised union for such under-
taking. Section 12 says that on receipt of such an application for recognition
and on payment of the prescribed fees, the Industrial Court shall, if it finds
the application to be in order, cause notice to be displayed on the notice
G board of the undertaking, declaring its intention to · consider the said
application on the date specified therein and call upon the other union or
unions, if any, having membership of employees in that undertaking and
the employers and employees affected by the proposal to show cause within
a prescribed time as to why recognition should not be granted to the
H applicant-union. After considering the objections, if any, received by it and
\
)
,CRESCENT DYES & CHEMICALS LTD. v. R.N. TRIPATHI [AHMADI, J.] 567
after holding such enquiry as it deems fit, the Industrial Court may grant A
recognition under the Act and issue a certificate of such recognition in the
prescribed form. Section 13 empowers the Industrial Court to cancel the
recognition in certain circumstances. Provision is also made in Section 14
/
to enable any union to make an application to the Industrial Court for
being registered as a recognised union in place of a recognised union
already registered as such for an undertaking if it is shown that it has the
B
largest membership of employees employed in such undertaking provided
a period of two years has elapsed since the date of registration of the
recognised union. Sections 19 and 20 spell out the obligations and rights
of a recognised union. Section 20(1)(d) confers a right on the authorised
officers, staff-members and members of a recognised union 'to appear on C
behalf of any employee or employees in any domestic or departmental
inquiry held by the employer'. Then come Sections 21 and 22 which may
be reproduced at this stage. They read as under:
"21. Right to appear or act in proceedings relating to
certain unfair labour practices. - (1) No employee in an D
undertaking to which the provisions of the Central Act for
the time being apply, shall be allowed to appear or act or
allowed to be represented in any proceedings relating to
unfair labour practices specified in items 2 and 6 of
Schedule IV of this Act except through the recognised E
union:
Provided that where there is no recognised union to ap-
pear, the employee may himself appear or act in any
proceeding relating to any such unfair labour practices.
F
(2) Notwithstanding anything contained in the Bombay
Act, no employee in any industry to which the provisions
of the Bombay Act, for the time being apply, shall be
allowed to appear or act or allowed to be represented in
any proceeding relating to unfair labour practices specified
in it~ms 2 and 6 of Schedule IV of this Act except through
G
the representative of employees entitled to appear under
Section 30 of the Bombay Act.
22. Rights of unrecognised unions. - Such officers, mem-
bers of the office staff and members of any union (other H
568 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A than a recognised union) as may be authorised by or under
the rules made in this behalf by the State Government shall,
in such manner and subject to such conditions as may be
prescribed, have a right ~
(i) to meet and discuss with an employer or any person
B appointed by him in that behalf, the grievances of any
individual member relating to his discharge, removal,
retrenchment, termination of servi._ce and suspension;
(ii) to appear on behalf of any of its members employed in
(' the undertaking in any domestic or departmental inquiry
held by the employer." \
Chapter VI. deals with unfair labour practices which have been listed in
Schedules JI, III & IV of the Act. Section 27 mandates that no employer
or union and no employee shall engage in any unfair labour practice.
D Section 28 sets out the procedure for dealing with the complaints relating
to unfair labour practices. Section 30 inter alia empowers the court, mean-
ing thereby the Industrial Court or the Labour Court, as the case ·may be,
to direct all those engaged in such practice to cease or desist from such
unfair labour practice and take such affirmative action (including payment
E o{ reasonable compensation to the employee affected thereby or reinstate-
ment of the employee with or without backwages) as may, in the opinion
of the court, seem necessary to effectuate the policy of the Act. This, in
brief, is the scheme of the Act.
As pointed out earlier the complaint made to the Labour Court by
F the workman was that the employer was guilty of unfair labour practice, in
that, his employment was terminated in utter disregard of the principles of
natural justice in the conduct of the domestic enquiry by .refusing to allow
Talraja to defend him in the domestic enquiry conducted by the enquiry
officer. The question is whether the enquiry officer wa~ jQStified in refusing
to permit Talraja to defend the delinquent in the enquiry conducted by
.G him.
It is clear from the scheme of the Act that with a view to facilitating
collective bargaining in certain undertakings, the concept of recognition of
trade unions was introduced and certain obligations/rights came to be
H imposed/conferred .on the recognised unions. Certain powers have also (
·,
CRESCENT DYES & CHEMICALS LTD. v. RN. TRIPATHI [AHMADI, J.) 569
been conferred on unrecognised unions by the Act. Clause ( d) of sub-sec- A
tion (1) of Section 20 states that such officers, members of the staff and
members of a recognised unions as may be authorised, shall-have a nghl
to appear on behalf of any employee or employees in any domestic or
departmental inquiry held by an employer. Section 21 says that no
employee in an undertaking to which the provisions· of the Industrial
Disputes Act applies, shall be allowed to appear or act or be allowed to B
be represented in any proceeding relating to unfair labour practices
specified in items 2 and 6 of Schedule IV to the Act, except through a
recognised union. The proviso clarifies that in the absence of a recognised
union, the employee may himself appear or act in any proceeding relating
to any such unfair labour practices. ~uh-section (2) of th.at section further C
provides that no employee to which tlie provisions of the Bombay Industrial
Relations Act applies shall be allowed to appear or act or be allowed to
be represented in any proceeding referred to in sub-section. (1) except
through representatives of employees entitled to appear under section 30
of the said Act. Section 30 of that Act specifies the representatives of D
employees who shall be entitled to appear or act on behalf of the
employees. Item 2 of Chapter IV reads :
"To abolish the work of a regular nature being done by
employees, and to give such work to contractors as a
measure of breaking a strike". E
Then item 6 of that chapter reads :
"t.o employ employees as 'badlis', casuals or temporaries·
and to continue them as such for years, with the object of
depriving them of the status and privileges of permanent F
employees."
These two items would not necessitate any domestic or departmental
enquiry although a complaint in regard to such unfair labour practices can
be envisaged under Section 28 of the Act. In the case of employees
governed by the Industrial Disputes Act, only the recognised union can G
represent them if the complaint is in regard to the unfair labour practices
stated in the said two entries and in the case of employees who ~e
governed by th~ Bombay Industrial Relations Act, only the representatives
specified in Section 30 of the said Act can represent the employees if the
alleged unfair labour practices relate to the said two entries. Thus while H
570 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R
A Section 20(1)(d) confers a ·right on the authorised officers, staff-members
and members of the recognised union to represent a delinquent in any
domestic or departmental enquiry held by the employer, in the case of
unfair labour practices falling within items 2 and 6, the right is further
restricted, in that, in the case of employees governed under the Bombay
Industrial Relations Act only those representatives mentioned in Section
B 30 of that Act will be entitled to represent while employees governed by
the Industrial Disputes Act would have to appear in person and conduct
the proceeding relating to such unfair labour practices in the absence of a
recognised union. In the case of an unrecognised union, officers, staff-
members and members of the union authorised by the State Government
c shall have a right to appear on behalf of any employee in domestic or
departmental enquiry held by the employer. The expressions 'union' and
'employees' have been defined in Sections 3(17) and 3(5), respectively. It
will thus be seen that in the case of an employee facing a domestic or
departmental enquiry, officers, office staff-members or members of a
D recognised or unrecognised uniQJl may appear and act on behalf of the
delinquent provided they are authorised by the State Government. In the
present case it is not in dispute that Talraja claimed to be an office bearer
of a trade union which did not have employees working in the appellant's
establishment (except the delinquent) as its members. Since Talraja was
not authorised by the ~tate Government he could not represent the delin-
E quent at the domestic or departmental enquiry under Section 22(ii) and
hence the Enquiry Officer was justified in law in refusing him permission
to represent the delinquent. · .
It may also be noticed that under the Certified Standing Orders the
F acts or omissions constituting misconduct have been enumerated in Stand-
ing Order No. 25 and Standing Order No. 26(2) entitles a delil}quent 'to
be defended by a clerk or a workman working in the same department as
himself. Since Talraja was not a clerk or workman working with the
delinquent in his department, even under the Standing Orfiers he was not
entitled to represent the delinquent. As held by this Court in Sudhir
G Chandra Sarkar v. Tata Iron & Steel Co. Ltd., (1984] 3 SCR 325 at 336, the
Standing Orders certified under the Industrial Employment Standing Or-
ders Act, 1946, become part of the terms and conditions of service between
the employer and the employees and they governed the relationship be-
tween the parties. Once the Standing Orders get incorporated in the
H contract of service both the employer and the employee are bound by those
CRESCENT DYES & CHEMICALS LID. v. R.N. TRIPATHI (AHMADI, J.) 571·
terms and the employee cannot be heard to contend that notwithstanding A
the same he would insist on an outsider representing him unless any special
statute permits him such representation. There is no such statute which has
the effect of overriding the Standing Orders except the Act, section 22(ii)
whereof enlarges the scope and permits an authorised officer, staff-mem-
ber or member of an unrecognised union to represent him. We a~e,
therefore, of the view that the Enquiry Officer was justified in refusing. B
permission to Talraja to represent the delinquent. The High Court, with
respect, has adopted a simplistic approach that since it is unfair labour
practice to discharge or dismiss an employee in utter disregard of the
principles of natural justice under itein l(f) of Schedule IV, in not allowmg
the workman to be defended by Talraja, the employer was guilty of unfair C
labour practice because there was nothing in Section 22 to deny such a
basic fundamental right without noticing the effect of the Standing Orders
and the true purport of Sections 21 and 22 of the Act and the decisions of
this Court to which we shall preseritlv refer.
Counsel for the workman argued that the limitation imposed ~y the
D
Standing Orders and Section 22(ii) runs counter to the principles of natural
justice, in that, it violates the right to hearing and a fair trial and must,
therefore, be ignored.
The doctrine of natural justice embodies two principles, namely, (i) E
no-one can be a judge in his own cause, and (ii) a judicial or quasi-judicial
tribunal ought not and shall not condemn any person unheard. In the
present case we are not concerned with the first principle and must,
therefore, confine ourselves to the second which recognises the right to be
heard. The second principle envisages that the right to be heard in order F
to be effective must be preceded by notice as to the exact charge which a
· delinquent is called upon to meet. Does then the right to be heard include
the right to be represented through counsel or agent of the choice of the
delinquent? If a Domestic Tribunal refuses permission to a delinquent
appearing before it to be represented by an agent would that amount to
infringement of the rule of natural justice? There can be no doubt that a G
delinquent must be given an opportunity of presenting his case in such way
{ suitable to the character of the enquiry which would ensure a fair hearing
resulting in fair dispensation of justice. But does that exte.nd to the right
to be represented through counsel or agent is the question which we are
called upon to answer. H
572 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A A delinquent appearing before a Tribunal may feel that the right to
representation is implied in the larger entitlement of a fair hearing based
on the rule of natural justice. He may, therefore, feel that refusal to be
represented by an agent of his choice would tantamount to denial of natural
justice. Ordinarily it is considered desirable not to restrict this right of
representation by counsel or an agent of one's choice but it is a different
B thing to say that such a right is an element of the principles of natural
justice and denial thereof would invalidate the enquiry. Representation
through counsel can be restricted by law as for example, Section 36 of the
Industrial Disputes Act, 1947, and so also by certified Standing Orders. In
the present case the Standing Orders permitted an employee to be repre-
c sented by a clerk ·or workman working .in the ~ame department as the
delinquent. So also the right t@ representation can be regulated or
restricted by statute. Such provisions irifact serve to underline the impor-
tance .attached to lhe right to representation. In Maclean v. The Workers'
Union, (1929) 1 d1: 602 at 621, Maugham, J. observed that counsel have
D no right of audie.nce .before· a Tribunal. However, in Pett v. Greyhound
Racing Association Ltd., (1968) 2 All. E.R. 545 (No. 1) = (1969) 1 Q.B.
125, the Court of Appeal was dealing with an appeal from an interlocutory
injunction restraining the Greyhound Racing Association Ltd. from holding
an enquiry on the question whether drugs had been administered to Pett's
dog. The rules of the club to which the trainer had agreed did not prescribe
E the procedure to be followed at such an enquiry .and did not exclude legal
representation. The procedure in fact followed was to allow the trainer to
be present, to hear the evidence and to question the witnesses. The trainer
sought to be represented by counsel and solicitor at the enquiry but the.
track stewards decided not to allow legal representation. On appeal from
the grant of an interlocutory injunctbn restraining the enquiry from being
F
held unless the right to representation was conceded, the Court of Appeal
held that primafacie the trainer was entitled to an oral hearing .and the
enquiry being one of serious importance to him, to be represented at it by
counsel and solicitor. The Court held that he was entitled not only to
personally appear but also to appoint an agent on his behalf, and so was
G entitled to appoint counsel and solicitor to represent him. Lord Denning,
M.R. while admitting ·that such a right may not be conceded in minor
matters felt that since the enquiry was one of serious consequences to pett,
prima facie he was entitled to counsel and solicitor. This is what the learned
H Judge observed :
CRESCENT DYES & CHEMICALS LTD. v. R.N. TRIPATIII (AHMADI, J.) 573
"The plaintiff is here facing a serious charge. He is charged A
either with giving the dog drugs or with not exercising
proper control over the dog so that someone else drugged
I I it. If he is found guilty, he may be suspended or his licence
may not be renewed. The charge concerns his reputation
and his livelihood. On such an enquiry I think that he is
entitled not only to appear by himself but also to .appoint B
an agent to act for him."
In taking this view reliance was placed on the observation of Sterling, J. In
Jackson & Co. v. Napper, (1887) 35 Ch. D. 162 at 172, to the following
effect: C
"....subject to certain well-known exceptions every person
who is sui juris has a right to appoint an agent for any
purpose whatsoever and that he can do so when he exer-
cising a statutory right, no less than when he is exercising D
any other right."
This principle was applied to hearing before an Assessment Committee iu
The Queen v.Assessment Committee of St. Mary Abbotts. Kensington, (1891)
1 Q.B. 378, wherein it was held that as the ratepayer had a right to appear
and be heard and as there was no prohibition from appearing by an agent E
a surveyor could appear for him. However, when Pett's case came up for
trial, Lyell, J. found it difficult to confirm the prima-fade view of Lord
Denning, J. in view of the Privy Council decision in University of Ceylon v.
E.F. W. Fernando, (1960) 1 W.L.R. 223. Lyell, J. refused to concede that
legal representation before a Tribunal constituted an elementary feature of F
fair dispensation of justice. See Pett v. Greyhound Racing Association Ltd.,
(supra). In Enderby Town Foot Ball Club Ltd. v. The Football Association
Ltd., (1971) Ch. 591, a rule of the Football Association prohibited clubs
which appealed to it against decisions of County Football Associations
from being legally represented. The appellant having appealed to the
Football Association sought an injunction to prevent the appeal being G
heard unless it was allowed legal representation. While Fenton Atkinson
L.J. & Cairns LJ. were inclined to take the view that the clubs might
exclude legal representation by an absolute rule, Lord Denning, M.R.
posed the question : 'Is a party who is charged before a domestic tribunal
entitled as of right· to be legally represented'? And Answered it by saying H
,.
574 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A 'much depends on what the rules say about it'. He then proceeded to add
that when the rules are silent, then the party has no absolute right to be _
legally represented; it is a matter left to the discretion of the tribunal whic.h
must be properly exercised. He then observed :
"........ oit may be a good thing for the proceedings on a
B domestic Tribunal to be conducted informally without legal
representation. Justice can often be done in them better by
a good layman than by a bad lawyer."
It can, therefore, be seen that Lord Denning did not strictly adhere to the
C view expressed by him in Pett's (No. 1) case. He felt that the right to
representation depends on the discretion of the Tribunal which must be
genuinely exercised and explained. In Pett's case he had intervened because
the Greyhound Racing Association Ltd. had developed an infleJcible prac-
tice of refusing representation regardless of the seriousness and complexity
D of the charges levelled against a delinquent. In Regina v. Race Relations
Board. Ex Parte Selvwajan, (1975) 1 W.L.R. 1686, the question of legal
representation though not strictly in issue was discussed by Lord Denning
M.R. generally and it was observed that there was a duty to act fairly
although each body could lay .down its own procedure. He also observed
that what fairness requires would depend on the nature of the investigation
E · and the consequences it · may have on persons affected by it, thereby
keeping open for courts in any particular case to grant the right of legal
· representation. Again in Maynard v. Osmond, (1977) Q.B. 240, a police
constable claimed a right to be legally represented when appearing before
his chi~f constable. This was spurned by the Court of Appeal which held
F that the Police (Discipline) Regulations, 1965 made under the Police Act,
1964 expressly provided for representation only by another policeman.
Lord Denning M.R. held that the regulations were entirely fair since the
prosecution was presented by a police officer not a lawyer, and the delin-
quent could be effectively represented by another police officer because of
his knowledge of the inner working of the police force.
G
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. Howev~.r; if the charge is of a serious and complex
H nature, the delinquent's request to be represented through a counsel or
CRESCENT DYES & CHEMICALS LTD. v. R.N. TRIPATHI [AHMADI, J.) 575
agent could be conceded. A
The law in India also does not concede an absolute right of repre-
sentation as an aspect of the right to be heard, one of the elements of
principles of natural justice. It has been ruled by this Court in (i) Kalindi
(N) & Ors. v. Tata Locomotive & Engineering Co. Ltd., Jamshedpur, [1960]
3 SCR 407, (ii) Brooke Bond India (P) Ltd. v. Subba Raman (S.) & Anr., B
(1961) 2 LU 417 and (iii) The Dunlop Rubber Co. v. Workmen, [1965] 2
SCR 139, that there. is no right to representation as such unless the
company. by its Standing Orders recognises such a right.
The first was the case in which Kalindi along with some other C
workmen was charge-sheeted on four counts. An enquiry was ordered into
their alleged misconduct and they were ultimately dismissed from service.
They filed applications under Section 33A of the Industrial Disputes Act
complaining of the action taken against them by the company. These
applications were, however, dismissed. Against that order an appeal was D
preferred to this Court in which the common contention urged was that
the enqufry was not a proper and a valid enquiry inasmuch as the workmen
were not allowed to be represented at the said enquiry by a representative
of the Jamshedpur Union to which these workmen belonged. It was urged
that the concerned workmen should have been allowed reasonable assis-
tance for examination and cross-examination of witnesses and for seeing E
.that the proper records were made of the proceedings. It was further
contended that a representative of the workmen's Union was best suited
to give such assistance and in the absence of such assistance a fair hearing
was denied. The question which arose for consideration was whether the
refusal of the workmen's request to be represented at the enquiry by a F
representative of their union vitiated the enquiry. This Court while reject-
ing the contention observed as under :
"Accustomed as we are to the practice in the courts of law
to skilful handling of witnesses by lawyers specially trained
in the art of examination and cross-examination of wit- G
nesses our first inclination is to think that a fair enquiry
demands that the person accused of an act should have the
assistance of some person who, even if not a lawyer may
be accepted to examine and cross examine witnesses with
a fair amount of skill. We have to remember, however, in H
'576 SUPREME COURT REPORTS [19921 SUPP. 3 S.C.R.
A the first place that these are not enquiries in a court of law.
It is necessary to remember also that in these enquiries
fairly simple questions of fact as to whether certain acts of ·
misconduct were committed by a workman or not only fall
to be considered and straightforward questioning which a
person of fair intelligence and knowledge of conditions
B prevailing in the industry will be able to do will ordinarily
help to elicit the truth. It may often happen that the accused
workman will be best suited and fully able to cross-examine
the witnesses who have spoken against him and to examine
the witnesses in his favour."
c
This Court concluded that in the concerned rules no provision was made
that the person against whom an enquiry is held may be represented by
anyone-else. This· Court further held that when the general practice
adopted by domestic Tribunals is that the delinquent must conduct his own.
D case, it is difficult to accept the submission that natural justice demands
that in such enquiries the workman should be represented by a member of
his union. If any enquiry is not otherwise fair, the workman concerned can
always challenge its validity in an industrial dispute. This Court, therefore,
concluded that a workman against whom an enquiry is being held by the
management has no right to be represented at such enquiry by a repre-
E sentative of his union though of course an employer in his discretion can
and may allow his employee to avail hims~lf of such assistance.
In the secon.!f case also the management of Brooke Bond (P) Ltd.
framed charges against two workmen involving gross negligence of duty
F and moral turpltude and ordered separate enquiries against them. The
workman Subba Raman appeared before the enquiry officer with counsel
and insisted that he should be permitted to be represented by counsel. The
enquiry officer refused this request whereupon the workman withdrew
from the enquiry. The enquiry was then concluded ex-parte resulting in the
dismissal of the workman. In the case of the other workman what happened
•G was that he appeared at ·the enquiry with an outsider and insisted that he
should be permitted to represent him at the enquiry. He was told that no
outsider would be allowed to do so whereupon he too withdrew from the
enquiry. The enquiry proceeded ex-parte and ended in his dismissal. This
Court relying on the decision in Kalindi's case concluded that the workmen
IH had no right to be represented at· such enquiry by a counsel or by an
CRESCENT DYES & CHEMICALS LTD. v. RN. TRIPATHI [AHMADI, J.) 577
outsider agent and the refusal of the enquiry officer to permit such repre- A
sentatives at the domestic enquiry did not offend the rule of natural justice.
In the third case the management, The Dunlop Rubber Company,
dismissed certain workmen after a domestic enquiry finding them guilty of
'go slow' action. An industrial dispute was raised wherein the Industrial
Tribunal found that the dismissal of the workmen could not be sustained B
since there was denial of natural justice inasmuch as the workmen were
not allowed to be represented by a person of their choice. On the Tribunal
setting aside the orders of dismissal the company appealed to this Court
by special leave. This Court held that there was no denial of natural justice
because the workmen had asked for being represented by a member of a C
union which was not recognised since the Standing Orders clearly provided
that only a representative of a registered and recognised union could assist
the workmen in the enquiry; there was no absolute right to representation
as such except that recognised by the Standing Orders.
D
It is, therefore, clear from the above case law that the right to be
represented through counsel or agent can be restricted, controlled or
regulated by statute, rules, regulations or Standing Orders. A delinquent
has no right to be represented through counsel or agent unless the law
specifically confers such a right. The requirement of the rule of natural
justice insofar as the delinquent's right of hearing is concerned, cannot and E
• does not extend to a right to be represented through counsel or agent. In
the instant case the delinquent's right to representation was regulated by
the Standing Orders which permitted a clerk or a workman working with
him in the same department to represent him and this right stood expanded
on Sections 21 and 22(ii) permitting representation through an officer, F
staff-member or a member of the Union, albeit on being authorised by the
State Government. The object and purpose of such provisions is to ensure
that the domestic enquiry is completed with despatch and is not prolonged
endlessly. Secondly, when the person defending the delinquent is from the
department or establishment in which the delinquent is working he would
be well conversant with the working of that department and the relevant G
rules and would, therefore, be able to render satisfactory service to the.
delinquent. Thirdly, not only would the entire proceedings be completed
quickly but also inexpensively. It is, therefore, not correct to contend that
the Standing Order or Section 22(ii) of the Act conflicts with the principles
· of natural justice. H
578 SUPREME COURT REPORTS [1992] SUPP. 3 s~c.R.
A .For the above reasons we are of the view that the learned Judge in
the High Court was in error in holding that the proceedings before the
Enquiry Officer were vitiated as violative of the principles of natural justice
and in setting aside the dismissal order. We are of the opinion that the
Enquiry Officer was legally justified in refusing the workman's agent Tal-
raja from participating in the domestic enquiry: The workman's action in
B withdrawing from the proceedings was ill-advised. We, therefore, allow this
appeal and set aside the impugned order of the High Court. Consequently
the order remanding the case to the Labour Court for disposal on merits
must also be. set. aside and any order made by the Labour Court will be ~-
void and inoperative. If the Labour Court has not disposed of the case, it
C will forthwith drop the proceedings as infructuous. In the facts and cir-
cumstances of the case, there will be no order as to costs.
V.P.R. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "representation"Sign in to search