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TMI Blog1992 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee is refused, such a fair opportunity of putting forward his case by a representative of his 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). 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. 3. Feeling aggrieved by the said order passed by the High Court, the original respondent No. 3, M/s. Crescent Dyes Chemicals Ltd., the employer, has preferred this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. 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 meaning of Item 1(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 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. 4. 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration 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 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 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 union: Provided that where there is no recognised union to appear, the employee may himself appear or act in any proceeding relating to any such unfair labour practices. (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 allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concept of 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. Clause (d) of Sub-section (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 right 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 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. Sub-section (2) of that section further provides that no employee to which the provisions of the Bombay Industrial Relations Act applies shall be allowed to appear or act or be allowed to be represented in any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a domestic or departmental enquiry, officers, office staff-members or members of a recognised or unrecognised union 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 State Government he could not represent the delinquent 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. 7. It may also be noticed that 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 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 represent the delinquent. As held by this Court in Sudhir Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 extend to the right to be represented through counsel or agent is the question which we are called upon to answer. 10. 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 thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: ...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 is exercising a statutory right, no less than when he is exercising any other right. This principle was applied to hearing before an Assessment Committee in 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 a surveyor could appear for him. However, when Pett's case came up for trial, Lyell, J. found it difficult to confirm the prima-facie 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. refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 chief constable. This was spurned by the Court of Appeal which held 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 delinquent could be effectively represented by another police officer because of his knowledge of the inner working of the police force. 11. 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. However, if the charge is of a serious and complex nature, the delinquent's request to be represented through a counsel or agent could be conceded. 12. The law in India also does not concede an absolute right of representation as an aspect of the right to be heard, one of the elem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a workman or not only fall to be considered and straight forward questioning which a person of fair intelligence and knowledge of conditions 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, 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 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 representative of his union though of course an employer in his disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 docs 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, 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 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 inexpe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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