Oral Judgment:

1. Heard Mr Sabnis, learned counsel for the petitioner and Mr G. Agni who appears with Mr Prashant Agrawal, Mr Yash Naik and Mr Kishan Kavlekar, for the respondent.

2. Leave to amend the cause title by correcting the name of the respondent company. Amendment to be carried out forthwith. Reverification is dispensed with.

3. The petitioner workman challenges the preliminary final. awards dated 21.11.2011 and 22.10.2012 made by the Labour Court in Case No. Ref. IT/04/06.

4. By the award dated 21.11.2011, the Labour Court has inter alia held that the enquiry against the petitioner was fair and proper and by the award dated 22.10.2012, the Labour Court has held that the penalty of dismissal imposed upon the petitioner was not disproportionate.

5. Mr Sabnis at the outset raised several grounds in the context of fairness enquiry. However, he stressed on the fact that in this case the employer was represented by Mr A. M. Gaikwad a well-qualified Advocate and Labour consultant but the petitioner workman was not allowed to be represented by Vinoo Sawant, a member of Trade Union or by any other Advocate. Mr Sabnis submitted that there was no embargo in the Certified Standing Orders for representation by an Advocate. Considering that the management was represented by a legally trained professional, denial of opportunity to the petitioner workman to be represented by an Advocate or by Vinoo Sawant, amounted to a gross violation of principles of natural justice and fair play. He submitted that such denial renders the entire enquiry proceedings grossly unfair and in violation of natural justice. He relied on Board of Trustees of the Port of Bombay Vs Dilipkumar Raghavendranath Nadkarni and others((1983) 1 SCC 124) and C. L. Subramaniam Vs The Collector of Customs, Cochin(AIR 1972 SC 2178) to support his contentions.

6. Mr Agni, learned counsel for the respondent submitted that in the Certified Standing Orders, the workman was entitled to appear in person or to be represented by an office bearer of the Trade Union existing in the establishment and of which he is a member. He submitted that there was no evidence about Vinoo Sawant being office bearer of the Trade Union existing in the establishment and of which he was a member. He submitted that there was no provision under the Certified Standing Orders for a workman to be represented by an Advocate. He submitted that the petitioner has not even challenged the order by which his application to be represented by an Advocate or by Vinoo Sawant came to be rejected. He submitted that this rejection order was entirely consistent with the Certified Standing Orders. He submitted that this aspect has been considered by the Labour Court and there is no error in such consideration.

7. For all these reasons, Mr Agni submitted that there was no violation of natural justice or any unfairness in the conduct of the enquiry proceedings.

8. The rival contentions now fall for determination.

9. In this case, the petitioner workman was issued a charge sheet dated 07.07.2001 alleging following: -

                   (i) disorderly or indecent behaviour on the premises of the establishment;

                   (ii) commission of any act subversive of discipline or good behaviour on the premises of the establishment;

                   (iii) going on an illegal strike and/or abetting, inciting, instigating or acting in furtherance there of;

                   (iv) wilful damage to work in progress or to any property of establishment or loss of employer's goods or property.

10. Based upon the above charge sheet, a domestic enquiry was held against the petitioner workman. The management was represented by Mr A. M. Gaikwad, who was legally trained labour consultant. There is a dispute as to whether Mr Gaikwad was an Advocate or not but there is no dispute about Mr Gaikwad being a legally trained labour consultant usually appearing on behalf of this very management.

11. The petitioner workman applied for permission to be represented by one Vinoo Sawant as defence representative. He stated that Vinoo Sawant was also defence representative of Federation of Trade Union, of which the petitioner was a member. However, in the alternate the petitioner sought for permission to be represented by an Advocate by contending that Mr Gaikwad who was an outsider, well qualified Advocate and labour consultant was representing the management.


12. The petitioner's request was turned down by simply referring to the Certified Standing Orders which provided in the following: -

                   "3(ba) In the inquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union existing in the establishment and of which he is a member."

13. The petitioner specifically raised the issue of unfairness of the enquiry on the ground of denial of permission to be represented by Vinoo Sawant or an Advocate before the Labour Court. There is no requirement of separately challenging the order denying the request.
A challenge to the unfairness of the enquiry inter alia by pointing out to the unfairness in the denial is quite sufficient. This was done.
One of the primary grounds was this issue.

14. The Labour Court cursorily by simply referring to above quoted Certified Standing Orders held that there was no error in denying the petitioner leave to be represented by either Vinoo Sawant or any Advocate. The contentions with regard to denial of opportunity to be represented by Vinoo Sawant and/or Advocate are noted in the Paras 10 and 11 of the impugned award dated 21.11.2011. Consideration of rival contentions is found in Para 14 of the Labour Court's award dated 21.11.2011. The relevant extract of the discussion on this issue is transcribed below for convenience of reference.

                   "The Workman in his oral evidence on record stated that he was not allowed to be represented by Shri. Vinoo Sawant, as his Defence Representative, on the contrary, the Management was allowed to be represented by Shri. A. M. Gaikwad, who is well experienced advocate and labour consultant. The records and proceedings of the enquiry conducted against the Workman which is on record at Exb. E/1 1-Colly indicates that ld. Enquiry Officer vide order dated 19/01/2002, disposed off an application of the Workman for allowing him to be represented by Shri. Vinoo Sawant as his Defence Representative in the said enquiry. The Id. Enquiry Officer dismissed the said application of the Workman in terms of Clause 3 (ba) of the Certified Standing Order of the Employer Company. The said order of the Id. Enquiry Officer is well reasoned and also supported by various decisions of Hon'ble Supreme Court of India. Hence I do not find any error or mistakes in dismissing the said application of the Workman for appointing Shri. Vinoo Sawant as his defence representative in the enquiry proceedings. The records and proceedings of enquiry of record clearly indicates that the Id. Enquiry Officer had allowed the Workman to appoint his Defence Representative to defend the charges in the enquiry proceedings as per his choice by a office bearer of a Trade Union existing in the establishment and of which he is a member in terms of Clause 3 (ba) of the Certified Standing Order of the Employer Company."

15. From the aforesaid, it is evident that both the enquiry officer and Labour Court considered and rejected the petitioner's request for being represented by Vinoo Sawant and/or Advocate primarily by referring to clause 3(ba) of the Certified Standing Orders quoted above. There is not even a discussion on the contention that the Certified Standing Orders did not put an embargo on representation by an Advocate, more particularly when management was being represented by a legally trained labour consultant. There is no discussion on why Vinoo Sawant was not held to be a trade union member of the existing establishment. There is no discussion on the issue of fairness when the management was being represented by legally trained labour consultant, and the petitioner workman was asked to fend for himself.

16. In this case, at Para 30 of the Labour Court's impugned award dated 21.11.2011, there is a reference to Vinoo Sawant admittedly raised a dispute vide letter dated 20.05.2003 on behalf of the Workman's Union to the Assistant Labour Commissioner, Mapusa Goa, pertaining to the payment of outstanding dues (arrears) payable to certain workmen arriving out of wage settlement dated 31.07.2001. This was in the context of arguments that the petitioner's services were terminated during the pendency of an Industrial Dispute or during the pendency of conciliation proceedings.


17. The relevant portion of Para 30 of the Labour Court's award dated 21.11.2011 is transcribed below for convenience of reference.

                   "30. Admittedly, the workman was dismissed from the service w.e.f.16/01/2004 on account of misconduct committed by him. Admittedly, Shri Vinoo Sawant had raised a dispute vide letter dated 20/05/2003 (Exb. W/2) on behalf of Workmen's Union to the Assistant Labour Commissioner, Mapusa Goa, pertaining to the payment of outstanding dues (Arrears) payable to certain Workmen arriving out of wage settlement dated 31/07/2001 (Exb.W/1)...."

18. The above extract shows that at least prima facie Vinoo. Sawant was an office bearer of the Worker's Union relating to respondent employer. Therefore, even under clause 3(ba) of the Certified Standing Orders, there should have been no prohibition at least for Vinoo Sawant to represent the petitioner workman. The petitioner had also brought evidence on record that Vinoo Sawant was representing some workers of this very same industry in some other domestic enquiry. All this material was not even looked into, let alone considered.

19. Apart from the above, clause 3(ba) of the Certified Standing Orders imposed no embargo on appearance through an Advocate. This was more so when the evidence on record clearly shows that the management has chosen to be represented by Mr Gaikwad as legally trained consultant and possibly an Advocate. The principles of natural justice and fairness demanded that such an opportunity should have been granted to the petitioner if the enquiry had to be regarded as fair and proper.

20. In the case of Dilipkumar Nadkarni (supra) the delinquent employee was denied permission to be represented by an Advocate on the ground that the Rules applicable permitted the delinquent employee to be represented by a co-worker. The Hon'ble Supreme Court noted that rules had not placed any specific embargo on the right of the delinquent employee to be represented by a legal practitioner. In any event, considering that there was no embargo, the delinquent employee should have been permitted to be represented by a legal practitioner since the management was being represented by two legally trained Presenting-cum-Prosecuting Officers.

21. The Court held that in the absence of Rules, the Chairman of the Employer is not precluded from granting a request because the rules did not enact an inhibition. Therefore, apart from general propositions, in the facts of this case, the enquiry would be a one-sided enquiry weighted against the delinquent officer and would result in denial of reasonable opportunity to defend himself. The delinquent officer was pitted against the two legally trained minds and one has to just view the situation where a person not admitted to the benefits of niceties of law is pitted against two legally trained minds and then asked to fend for himself. In such a situation, it does not require a long argument to convince that the delinquent employee was denied a reasonable opportunity to defend himself and the conclusion arrived at would be in violation of one of the essential principles of natural justice, namely, that a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself.

22. The relevant observations from Dilipkumar Nadkarni (supra) in Paras 10 and 11 are transcribed below for convenience of reference.

                   "10. Even in a domestic enquiry there can be very serious charges, and an 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 pay-rolls 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 of the delinquent employee to be represented by a legal practitioner, the matter would be in the discretion of the Enquiry Officer whether looking to the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, the delinquent employee in order to afford a reasonable opportunity to defend himself should be permitted to appear through a legal practitioner. Why do we say so? Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere? Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a court presided over by an unbiased Judge ?. The Enquiry Officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to these uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not a euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi-judicial tribunal cannot view the matter with equanimity on inequality of representation. This Court in Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544, AIR 1978 SC 1548, 1978 Cri LJ 1678 clearly ruled that in criminal trial where prosecution is in the hands of public prosecutor, accused, for adequate representation, must have legal aid at State cost. This will apply mutatis mutandis to the present situation.

                   11. We are faced with the situation where when the enquiry commenced, the rules neither provided for permitting the delinquent employee to be represented by an advocate nor an embargo was placed on such appearance. The rules were silent on this point. But the Chairman of the appellant while rejecting the request of the 1st respondent seeking permission to appear through a legal practitioner simultaneously appointed M/s R.K Shetty and A.B Chaudhary, Legal Adviser and Junior Assistant Legal Adviser respectively, in the employment of the appellant as Presenting-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 prosecutor, he simultaneously proceeds to deny such legal representation to the delinquent employee, when he declined the permission to the 1st 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 Port Trust while the 1st 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 cannot engage a legal practitioner at his cost. Can this ensure a fair enquiry? The answer is not far to seek. Apart from any legal proposition or formulation we would consider this approach as utterly unfair and unjust. More so in absence of rules, the Chairman of the appellant was not precluded from granting a request because the rules did not enact an inhibition. Therefore, apart from general propositions, in the facts of this case, this enquiry would be a one-sided enquiry weighted against the delinquent officer and would result in denial of reasonable opportunity to defend himself. He was pitted against the two legally trained minds and one has to just view the situation where a person not admitted to the benefits of niceties of law is pitted against two legally trained minds and then asked to fend for himself. In such a situation, it does not require a long argument to convince that the delinquent employee was denied a reasonable opportunity to defend himself and the conclusion arrived at would be in violation of one of the essential principles of natural justice, namely, that a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself."

23. In the case of C. L. Subramaniam (supra), a government employee requested the Enquiry Officer to permit him to appear through a legal practitioner since a trained Public Prosecutor was appointed as Presenting Officer. This request was turned down by the Domestic Tribunal. The Domestic Tribunal's order was sought to be sustained by reference to Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which provided that the Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits. The argument was that it was a matter within the discretion of the Enquiry Officer and more so because the relevant rule fetters the claim to appear through a legal practitioner.

24. The Hon'ble Supreme Court negatived the above contention and held that the fact that the case against the delinquent officer was being handled by a trained prosecutor was by itself a good ground to engage a legal practitioner to defend him lest the scales should be weighed against him. The Court held that they had reached a stage in their onward march to fair play 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.

25. Lord Denning in Pett Vs. Greyhound Racing Association Ltd.((1968) 2 All IS 545) was concerned with a case where rules of the National Greyhound Racing Club prohibited appearance through a legal practitioner in any disciplinary proceedings against the member/licensee. The licensee charged with misconduct was denied permission to be represented by a counsel and solicitor at the enquiry. When the matter reached the Court of appeal, Lord Denning observed as under: -

                   "I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by counsel or solicitor."

26. After referring to Lord Denning in Pett Vs Greyhound Racing Association Ltd., (supra) the Hon'ble Supreme Court in the case of Dilipkumar Nadkarni (supra) held that the trend therefore is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a result of an enquiry, to enable him to defend himself adequately, he may be permitted to be represented by a legal practitioner. This was more so where the management was being represented by legally trained consultant. Therefore, without examining other issues raised by Mr Kabir or those which arise in this petition, there are grounds to hold that the enquiry held against the petitioner could not have been regarded as fair and proper. The enquiry violated principles of natural justice and visited the petitioner with serious prejudice because of outcome of this enquiry, the petitioner was dismissed from service. Prejudice is evident in the context of enquiry proceedings.

27. For the above reasons, the impugned awards are liable to be set aside and are hereby set aside. Until the charge against the petitioner workman is proved in a fair and proper enquiry, there is no question of deciding on the issue of proportionality of the penalty.

28. However, Mr Agni, the learned counsel for the respondent pointed out that the respondent-employer in its written statement at Para 15 had specifically sought for leave to adduce evidence in support of charges levelled against the petitioner workman in case the Court concludes that the enquiry conducted against the petitioner workman was not fair or the findings were perverse. He submitted that in these circumstances, the respondent - employer is entitled to an opportunity to lead the evidence before the Labour Court to prove the charges levelled against the petitioner workman.

29. Para 15 of the written statement filed on behalf of the respondent-employer reads as follows: -

                   "15. The Party II states that in the event this Hon'ble Court comes to the conclusion that the enquiry conducted against the Party I is not fair or the findings are perverse, the Party II craves leave to adduce evidence before this Hon'ble Court in support of the charges."

30. In the case of Workmen of M/s Firestone Tyre and Rubber Co. of India (P.) Ltd. Vs Management and others((1973) 1 SCC 813), the Hon'ble Supreme Court has held that even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying its action, and it is open to the employee to adduce evidence contra. Further, an employer, who wants to avail opportunity of adducing evidence for the first time before the Tribunal to justify its action, should ask for it at the appropriate stage. In this case, in the written statement itself the respondent employer has sought for opportunity.

31. There is no reason to deny the same. None was specifically pointed out, though Mr Kabir did argue on the consequential prejudice. No doubt this would prejudice the Petitioner to some extent, given the delay. But such prejudice can always be compensated or at least mitigated by ordering some financial benefits to the Petitioner if the Petitioner seeks them by filing an appropriate application before the Labour Court. The proceedings can also be ordered to be expediated.

32. On the above ground, even without examining the others, the preliminary award must be set aside. The final award, which considers the aspect of proportionality of the punishment, is predicated upon such a penalty being imposed in a fair and proper enquiry, not an unfair enquiry, as in the instant case. The final award can therefore not survive and will also have to be set aside. Both the impugned awards are hereby quashed and set aside.

33. Accordingly, after quashing the impugned awards, the matter is now remanded to the Labour Court to permit the parties to lead evidence on the charges levelled against the petitioner and thereafter to decide the matter in accordance with the law. This exercise must be completed expeditiously and in any event within a period of eight months from the filing of an authenticated copy of this judgment and order before the Labour Court.

34. Both parties must cooperate with the Labour Court and should not delay the matter unduly. Upon remand, the petitioner is at liberty to apply before the Labour Court for any financial benefits, like subsistence allowance, etc., if permissible under the law. If such an application is made, the Labour Court must dispose of the same in accordance with the law and on its own merits within a period of one month of its filing.

35. Considering the charges levelled, time lapse and the issues that arise from such time lapse, the parties must consider whether any settlement can be reached. The parties must in fact, try and make efforts to reach to some settlement on terms honourable to both the parties. The management must consider whether it is worthwhile to pursue this litigation any further even assuming that it can prove the charges against the workman. The workman was dismissed more than 20 years ago, and that itself operates as punishment. The workman must also consider the matter pragmatically, and move on, if some reasonable financial settlement is offered. These are, of course, only suggestions prompted by the peculiar facts that this matter presents. The Labour Court, upon remand, should therefore make some efforts in this direction.

36. The rule is made absolute in the above terms without any orders for costs.

37. The parties are directed to appear before the Labour Court on 12.01.2026 at 10.30 a.m. and file an authenticated copy of this judgment and order.

38. The Labour Court must take cognisance of the authenticated copy of this Judgment and order and proceed accordingly.