Capstan Meters (India) Limited vs The Judge, Labour Court and Others

Farooq Hasan, J.—This special appeal has been preferred against the order dated 21.12.1989 passed by the learned Single Judge, dismissing the writ petition filed by the appellant and upholding the order of the Judge, Labour Court, Jaipur, dated 6.12.1988, holding that the domestic enquiry held by the appellant against the respondent Nos. 3,4 and 5, is against the principles of natural justice, on the ground that the Enquiry Officer was not a person competent to hold enquiry in accordance with the Standing Orders of the appellant.

Respondent Nos. 3, 4 and 5 were employed with the petitioner company and individual charge-sheets were served upon them. The appellant appointed Shri A.B.L. Bhargava Advocate as Enquiry Officer, who held the domestic enquiry and gave his report on April 7, 1986, finding all the three respondents guilty of the charges. The appellant, accepting the report of the Enquiry officer, decided to terminate their services with effect from 15.4.1986.

Mazdoor Union, respondent No. 2, raised an industrial dispute with respect to termination of services of the above three workmen, which was referred u/s 10(1) of the Industrial Disputes Act, 1947, to the Labour Court, Jaipur. The Labour Court, after hearing the parties, held that the Enquiry Officer appointed by management (appellant) was fair, proper and he followed the principles of natural justice but it further held that the enquiry was invalid because the Enquiry Officer was not competent and qualified to be appointed as an Enquiry Officer as he was not an ''officer'' of the appellant company and therefore, it was against the Standing Orders of the appellant. This order of the labour Court was challenged by the appellant before the learned Single Judge, by way of writ petition, which was dismissed, and hence, this special appeal.

Learned Counsel for the appellant has very vehemently submitted that the respondent Nos. 3 to 5 appeared before the Enquiry Officer and they did not raise any objection regarding his appointment as an Enquiry Officer, therefore, they should be deemed to have acquiesced and waived this objection, having surrendered to the jurisdiction of the labour court could not raise this point before the Labour Court. In this connection, he has placed reliance on Pannalal Binjraj Vs. Union of india (UOI), , Manak Lal Vs. Dr. Prem Chand, , Manak Lal Vs. Dr. Prem Chand, , Nanjundappa (B.N.) Vs. State of Mysore, and A.R. Antulay Vs. R.S. Nayak and Another, .

He has further submitted that the Standing Orders envisage only an ''officer''. He need not be an officer serving in the company. The word ''officer'' means, an officer appointed to enquire i.e. Enquiry Officer. The court cannot add or subtract some words in the legislation or the standing orders and in this connection, reliance has been placed by learned Counsel for the appellant on, Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, ; Pandit Ram Narain Vs. The State of Uttar Pradesh and Others, and British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, .

Learned Counsel for the appellant has further submitted that similar provisions have been interpreted by the courts, including the Supreme Court and appointment of an Advocate as an Enquiry Officer had been upheld. In this connection, reliance has been placed on Sridharan Motor Service Vs. Industrial Tribunal and Others, Rai Bahadur Diwan Badri Dass and Others Vs. The Industrial Tribunal, Punjab, Patiala and Others, Saran Motors (Private) Ltd., New Delhi v. Vishwanath and Anr. (1964) II LLJ 139 (SC), Dalmia Dadri Cement, Ltd. Vs. Shri Murari Lal Bikaneria, , The Management of Sri Sivasakthi Bus Service Vs. P. Gopal and Another, , Hindustan Lever Ltd. v. Their Workmen and Anr. 1974 29 FLR 305 and Narendra Pratap and Anr. v. Jagmohan Bharti 1976 (32) FLR 218.

On the other hand, learned Counsel for the respondent Nos. 3 to 5 has supported the judgment of the Labour Court as well as the order passed by the learned Single Judge, and has placed reliance on D.P. Maheshwari v. Delhi Administration and Ors. 1983 Lab. IC 1629 and has submitted that the writ petition is not maintainable and this Court in exercise of its writ jurisdiction, should not interfere with the findings of the Labour Court, because the Company may well afford to wait to the detriment of the labour, who can ill-afford to wait for the implementation of the orders of the Labour Court.

He has further placed reliance on Workmen of Food Corporation of India v. Food Corporation of India 1985 (2) LLN 20 , and has further submitted that no employer, since the introduction of the Industrial Disputes Act, 1947 and contrary to the certified Standing Orders, can dispense with the services of any workmen without complying with the law in force. Any termination of service contrary to the provisions of the Standing Orders and the provisions of the Industrial Disputes Act, would be void. He has also placed reliance on The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others,

Learned Counsel for the respondent Nos. 3 to 5 has further submitted that the appellant cannot be allowed to take new pleas which were not raised before the learned Single Judge, and in this connection, he has placed reliance on Munna Lal (Dead) by Lrs. and Others Vs. Suraj Bhan and Others,

Learned Counsel for the respondent Nos. 3 to 5 has also brought to my notice M/s. R.B.Lachmandas Sugar and General Mills v. Chhedi Lal and Ors. 1977 SLJ 370, wherein the Allahabad High Court has held that the domestic enquiry conducted by a person not competent, by the Standing Orders of the Company, to conduct such enquiry, is of no avail and the dismissal of the workman on the basis of the findings of such an Enquiry Officer was illegal.

He has further placed reliance on Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, and Rasiklal Veghajibhai Patel v. Ahmedabad Municipal Corporation and Anr. (Vol. 66 1985 FJR 225) and has submitted that items of mis-conduct enumerated in the Standing Orders alone can form the basis of any action. Since the alleged misconduct in the present case was not committed within the premises of the establishment or in the vicinity there of or during the course of employment, this cannot form basis for such an action.

I have given my thoughtful consideration to the whole matter and have carefully gone through the judgment of the learned Single Judge as also the authorities cited at the bar.

The main point for consideration in this case is as to whether the enquiry conducted by Shri A.B.L. Bhargava, Advocate, was proper and whether Shri A.B.L. Bhargava was competent to hold enquiry. It is not in dispute that the Company has issued Standing Orders for workmen as envisaged by the Industrial Employment Standing Orders Act, 1946 and that these Standing Orders are mandatory in nature. It will be profitable to quote the relevant Standing Order No. 16(e) which deals with the procedure for dealing with the cases of major misconduct, as under:

16(e) Procedure for dealing with cases of Major misconduct:

if a major misdemeanour is alleged against the, workman, the Management before taking any action against the workman will hold an enquiry by an Officer or Officers appointed for the purpose. The workman charged with major misdemeanours will be afforded a reasonable opportunity for explaining and defending his actions but to avail himself of this privilege such workman must appear before the Manager when directed to do so. He shall, however, be informed about the time at which the enquiry into his alleged misconduct is to be held and if he refuses or fails to present himself at that time, the enquiry shall be concluded ex-parte. Workman charged with major misdemeanour may be suspended from duty pending enquiry for final disposal of his case.

(ii)...

(iii)...

(iv)...

(v)...

The aforesaid provision implies that in a case of major misconduct, the management is bound to hold an enquiry by an officer appointed for the purpose. The word ''officer'' has not been defined in the Standing Orders or elsewhere, particularly labour law. The main purpose of providing t he procedure under the Standing Order is that the workmen should not be punished without holding an enquiry and this enquiry should be held by the responsible person so that it inspires confidence in the workmen. If we confine the word ''officer'' to mean only an officer of the Company or the management, I think it will not be proper or ever permissible under the law because the courts should not act or subtract any word for assigning the meaning or interpreting a clause. There are numerous cases of the High Courts as well as Supreme Court on this point and it is not necessary for me to quote any one because it is an established principle of interpretation. If we want to say that the word ''officer'' as mentioned in Standing Order No. 16(e) means only an officer of the company, we will have to add the words ''of the company'' in the clause, which is not permissible. There is another reason that after all, an officer of the company is an employee of that company and there may be some cases in which bias is alleged against that officer who happens to be in service of the company. Numerous cases have come to the courts where bias has been alleged against the officer of the company who has conducted the enquiry. Therefore, I do not find any objection if an advocate who is not in the service of the Company is appointed as an Enquiry Officer to enquiry into the charges of major misconduct. It is not likely to prejudice the workmen, on the other hand, it is likely to repose confidence in the workman because an advocate is expected to know some law and is also expected to be acquainted with the principles of natural, justice which should be followed in the enquiry He is further expected to know the latest trend of the judicial pronouncements and then, there is no likelihood of his having any bias or personal prejudices against the workmen. Moreover, an advocate appearing in the court is also popularly known as an officer of the court, though he is representing in the adversary system.

This is not the first time that such a question has been raised before the court. The matter came up in Sridharan Motor''s case (supra) in 1959 where the Madras High Court held that if a full time salaried Manager is not disqualified, it is difficult to say how an advocate who relatively speaking an outsider can be said to be disqualified to hold an enquiry. In 1964 the case of Saran Motor (supra) came up before the Supreme Court. In that case, enquiry was held by an advocate and the Supreme Court upheld the decision of the enquiry officer and further found that he had no bias in favour of the management and he was quite competent to hold enquiry. One of the arguments given was that the lawyer was not a paid officer of the company. It was observed that merely because a person is sometimes employed by the employer as a lawyer, he does not become incompetent to hold a domestic enquiry and he cannot be held disqualified merely because he is paid remuneration for holding an enquiry. Their lordships of the Supreme Court again in Dalmia Dadri Cement (supra) approved the observations made in Saran Motors'' case (supra) and upheld the result of the enquiry conducted by the advocate.

Madras High Court in P. Gopal''s case (supra) has observed that it is now well settled that the management can appoint an independent person not necessarily the one who is inside the management''s activities and as a matter of fact, appointment of a stranger to enquiry into such disputes is encouraged to a great extent.

Delhi High Court again in Narendra Pratap and Ors.'' (supra), relying on Saran Motors and Dalmia Dadri Cement case (supra), upheld the enquiry report given by the enquiry officer who happened to be an advocate and rejected the contention that the enquiry officer was biased as he was connected with the law firm which was the legal advisor to the management.

Recently, in Central Bank of India Vs. C. Bernard, relying on Saran Motors'' case (supra), their lordships of the Supreme Court have held that an enquiry officer need not be an officer of the bank; even third party can be appointed as enquiry officer to enquire into the conduct of an employee.

In this view of the matter and the legal position discussed above, I am of the firm opinion that there is no illegality in appointing an advocate as an Enquiry Officer, to hold an enquiry into the major misconduct of a workman. The rulings cited by the learned Counsel for the respondents are of no avail and do not throw any light on this aspect of the matter. As such, it is not necessary for me to go into other points raised by the learned Counsel for the parties.

In the result, this special appeal is allowed, the order dated 21.12.1989 passed by the learned Single Judge as well as the order dated 6.12.1988 passed by the Judge, Labour Court are set aside and it is held that Shri A.B.L. Bhargava, Advocate, who was appointed as the enquiry officer was quite competent to hold enquiry. No order as to costs.