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Judgment
A. Kulasekaran, J.—The petitioner has filed this writ petition seeking for a writ of Certiorari to call for the records connected with the Order
of the second respondent herein in Approval Application No. NTB/37/93/55 dated 07-02-1995 and quash the same.
Heard both sides. The petitioner joined duty in the 1st respondent/Indian Airlines Limited as Typist on 10-09-1975, later he was promoted as
Office Superintendent Grade 7/8 from 27-02-1978. Subsequently, he was promoted as Office Superintendent (SG) Grade 9 on 10-02-1981. The
Security Officer, T. R. Rajagopalan asked him to issue temporary Entry permits to the persons recommended by him without any valid applications
or appointment orders or police verification report etc., He opposed the same by giving complaint to the Regional Director of Indian Airlines
Limited on 03-05-1991, grievance form dated 14-08-1991, and another complaint dated 19-08-1991 to the Regional Director, Indian Airlines
Limited, Madras and also sent an appeal dated 30-08-1991 to the Chairman, Indian Airlines Limited, Head Quarters, New Delhi. The higher
officials has not taken any action against the said T. R. Rajagopalan. On 14-08-1991 a charge memo was issued to the petitioner alleging that he
had abused the Security Officer namely T. R. Rajagopalan. Another Charge memo dated 28-08-1991 was issued to the petitioner on the ground
that he refused to receive the charge memo dated 14-08-1991. The grievances form dated 14-08-1991 sent by the petitioner was also returned
without any comments or reply on 24-08-1991. Another registered cover with acknowledgment due was received by the petitioner on 29-08-
1991 which contained only four blank white sheets which prompted him to write a letter dated 29-08-1991 to the Deputy Manager (Personnel
Services), Indian Airlines Limited, Madras, which form part of the subject matter of another charge sheet dated 27-09-1991. The petitioner has
denied all the three charge sheets by sending three separate explanations dated 19-10-1991. One Jaisingh Manoharan, Assistant Commercial
Officer, Indian Airlines was appointed as an Enquiry Officer. Though there is no provision in the Standing Orders of Indian Airlines for
appointment of a Presenting Officer, one G. Radhakrishnan was appointed as Presenting Officer. The presenting Officer was not a law graduate,
but legally trained as he had acted as Presenting Officer in number of enquiries for the Corporation. Hence, the petitioner requested for legal
assistance to defend his case, but it was refused. The petitioner also could not have the assistance of any co-employees because nobody was bold
enough to come forward to assist him. The petitioner has made an appeal to the Chairman-cum-Managing Director, Indian Airlines Limited, New
Delhi on 10-04-1992 and 27-04-1992 against the order of denial of legal assistance but no reply was given. The petitioner has attended the
enquiry with protest. According to the petitioner, the enquiry officer did not record the depositions properly and refused to call for the records
required by the petitioner. The petitioner has sent a representation to the Regional Director, Indian Airlines, Madras, against Enquiry Officer and
Presenting Officer requesting him to change the enquiry officer. A representation was also sent to withhold the enquiry till a reply relating to change
of enquiry officer is received from the Regional Director and Chairman-cum-Managing Director. The Enquiry Officer has set the petitioner ex-
parte and given his findings on 22-02-1993 stating that all the charges were proved against the petitioner. Second show-cause notice dated 06-
05-1993 was issued by the Regional Director for which suitable reply was also sent by the petitioner on 30-05-1993. The Regional Director has
passed an order dated 14-06-1993 removing the petitioner from the services. The petitioner has preferred an appeal to the Chairman-cum-
Managing Director on 14-07-1993, but no reply was received. The Management of Indian Airlines Limited has also filed a petition u/s 33(2)(b) of
the Industrial Disputes Act before the National Tribunal for approval of their action. The petitioner has marked 31 exhibits before the National
Industrial Tribunal at Bombay and canvassed that no legal assistance was permitted and the enquiry was biased and the charges were motivated
with the intention of protecting the said T. R. Rajagopalan. The National Industrial Tribunal has rejected the contention of the petitioner and
accorded approval of the management''s action, hence this writ petition has been filed to quash the order of the National Industrial Tribunal dated
07-02-1995.
Mr. Ganesan, learned counsel appearing for the petitioner argued that the disciplinary action initiated against the petitioner was motivated and
malafide; that the National Industrial Tribunal ought to have held that in the circumstance of the case legal assistance should have been provided to
the petitioner to assist him. Even if there is a provision in the Standing order prohibiting outside representation legal assistance should have been
provided to the petitioner in as much as the Management had the assistance of legally trained presenting officers, though the standing orders do not
provide for appointment of a presenting officer. The learned counsel further argued that the disciplinary authority ought to have changed the enquiry
officer as the petitioner had made representations expressing his apprehension of bias; that the Tribunal had failed to note that documents were
denied to the petitioner and permission to inspect the documents were insufficient. The learned counsel also argued that the petitioner has taken a
stand before the Tribunal that he is not a workman and the Tribunal has erroneously found that it is not necessary to record any findings at this
point. The Tribunal ought to have held that the Deputy Manager (Personnel Services (IR) K. Sampathkumar has no right to initiate action against
the petitioner by framing the alleged charges especially when some allegations are made by the petitioner against him.
Mr. N.G.R. Prasad, learned counsel appearing for the 1st respondent argued that the charge sheet dated 14-08-1991 was issued to the
petitioner with specific charge of misconduct, but the petitioner refused to receive the same, hence another charge sheet dated 28-08-1991 was
issued for his refusal. The petitioner has not submitted any grievance form as alleged by him. The petitioner in his letter dated 29-08-1991 has
stated that he received four blank white sheets only. Indeed, the chargesheet dated 28-08-1991 and the enclosures were sent to him by the
Management. Instead of giving his explanation, the petitioner has made false allegations that he received only four blank sheets. The petitioner has
not only committed serious misconduct on 14-08-1991 but he persisted in perpetuating further misconduct by refusing to accept the charge sheet
and made all these allegations that he had only received four blank white sheets. The common reply dated 19-10-1991 sent by the petitioner
relating to the said charges were not found satisfactory and hence an enquiry officer was appointed. The Presenting Officer is neither a Law
Graduate nor a legally trained person. He never acted as a presenting officer in number of cases as alleged by the Petitioner. The representation
sent by the petitioner to the Chairman-cum-Managing Director was duly examined and the decision was also communicated to the petitioner vide
letter dated 10-06-1992. The petitioner failed to appear before the enquiry, after affording adequate opportunity the enquiry officer conducted
enquiry ex-parte. The Management issued second show-cause notice to which an explanation dated 30-05-1993 was received from the petitioner,
thereafter, the Management has passed the order of removal from services. The appeal preferred by the petitioner to the Chairman-cum-Managing
Director against the order of removal was also considered and rejected on 18-03-1994. The approval application u/s 33(2)(b) was filed before
the National Industrial Tribunal and the Tribunal has also accorded approval after hearing both sides. Since the petitioner has taken a defence that
he is not a workman as defined u/s 2(s) of the Industrial Disputes Act, this writ petition is not maintainable and prayed for dismissal of this writ
petition.
The learned counsel appearing for the petitioner relied on Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni
and Others, wherein in Para-12 it was held thus:
Are we charting a new course? The answer is obviously in the negative. In C.L. Subramaniam Vs. Collector of Customs, Cochin, a
Government employee requested the Enquiry Officer to permit him to appear through a legal practitioner and even though a trained public
prosecutor was appointed as Presenting Officer, this request was turned down. When the matter reached this court, it was held that the enquiry
was in breach of the principles of natural justice. The order of the domestic tribunal was sought to be sustained on the submission that sub rule (5)
of Rule 15 of the Central Civil Services (Classification, Control and Appeal Rules, 1957 lays 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 submission was that it is a matter within the discretion of the Enquiry Officer whether to grant
permission and more so because the relevant rule fetters the claim to appear through a legal practitioner. Negativing this contention, this Court held
that the fact that the case against the appellant was being handled by a trained prosecutor by itself a good ground for allowing the appellant to
engage a legal practitioner to defend him lest the scales should be weighted against him. The conclusion recorded after reference to the earlier
decisions in Brooke Bond India (Pvt) Ltd V. S. Subba Ramman, (1964) II LLJ 417 and The Dunlop Rubber Co. Vs. Workmen, . Reference was
made to Pett''s case (1968) 2 All ER 545 , referred to earlier, but it is observed that this case has not commended itself to this Court. The earlier
cases of this Court were distinguished. In our view, we have reached a stage in our onward march to fair play in action that where in an enquiry
before the Domestic tribunal the deliquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal
practitioner and the refusal would amount to denial of a reasonable opportunity to defend himself and the essential principles of natural justice
would be violated. This view has been taken by a learned Single Judge and while dismissing the appeal in limine approved by the Division Bench of
the High Court commends to us. Therefore, this appeal is liable to be dismissed.
In this case, it was held that in an enquiry before the Domestic tribunal the deliquent officer is pitted against a legally trained mind, if he seeks
permission to appear through a legal practitioner and the refusal would amount to denial of a reasonable opportunity to defend himself and the
essential principles of natural justice would be violated.
The learned counsel appearing for the petitioner relied on an unreported judgment of this Court (Division Bench) in W.A. No.1424 of 1998
dated 03-10-1991 wherein in it was held thus:-
The Corporation did have the services of a legally qualified and trained person, who had considerable experience in the conduct of disciplinary
proceedings. It is not claimed that either the petitioner or Mr. S. Ramanathan, who assisted the petitioner as a friend was equal to the Presenting
Officer, appointed by the Corporation. How far the petitioner could have achieved the result desired by him, namely, extricating himself from the
charges if he had only the assistance of a legal practitioner, we cannot envisage and say a positive answer one way or the other. It would be unfair
to do so also. The fact, indisputable as it is, remains that the petitioner was at a disadvantage in the course of the prosecution of the disciplinary
proceedings and the ultimate result went against him. He must be accorded the reliefs.
In the above judgment, the Management had the service of a legally qualified and trained person, who had considerable experience in the conduct
of disciplinary proceedings, the assistance on the side of deliquent was not equal to the said person and the Division Bench has come to the
conclusion that the deliquent was at a disadvantageous position in the course of the prosecution of the disciplinary proceedings. The Division Bench
has dismissed the writ appeal filed by the management of Indian Airlines Limited accepting the contention of the deliquent.
The learned counsel appearing for the respondent relied on Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi, wherein in Para 17 it
was held thus:-
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 deliquent has no right to be represented through a counsel or agent unless the law
specifically confers such a right. The requirements of the Rule of natural justice in so far as the deliquent''s right of hearing is concerned, cannot and
does not extend to a right to be represented through counsel or agent. In the instant case the deliquent''s right of 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 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 deliquent is from the department or establishment in which the deliquent 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
deliquent. 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.
In the above judgment, it was held by the Hon''ble Supreme Court that the deliquent has no right to be represented through a counsel or agent
unless the law specifically confers such a right. The requirements of the Rule of natural justice in so far as the deliquent''s right of hearing is
concerned, cannot and does not extend to a right to be represented through counsel or agent.
Before the Tribunal, the contention putforth by the petitioner was that (i) he was not allowed to be represented through a lawyer and therefore
the enquiry is vitiated and (ii) The enquiry officer failed to record correctly the answers elicited in cross-examination.
In so far as the first contention is concerned, I feel it is absolutely necessary to look into clause 31 of the Standing Order, which runs as follows:-
An employee as may be permitted, if he so desires to have under his own arrangements, the assistance of a ""friend"" during the course of the
inquiry such a ""friend"" must be an employee of the corporation. No outside representation shall be permitted in any circumstances"".
However, the clause permits the assistance of a ""friend"" who must be an employee of the Corporation.
The petitioner has not produced any document either before the Tribunal or before this Court to show that the presenting officer appointed by
the Corporation was a legally trained person and appeared in number of enquiries. The learned counsel for the petitioner is also unable to quote the
relevant provisions in the Standing Order to say that the Management has no right to appoint a presenting officer. Hence, the Tribunal is right in
holding that the enquiry is not vitiated on the ground that the petitioner was not allowed to be represented by a legal practitioner.
In so far as the second contention is concerned, the Tribunal has given a finding that the enquiry officer has recorded the evidences properly
pointing out that additional words were added at the instance of the petitioner herein. The Tribunal, on appreciation of the documentary evidence
placed before it has accorded approval. I am of the view that no interference of this Court is warranted in the order passed by the Tribunal.
The petitioner has challenged the approval granted by the tribunal in this writ petition. The proper course for the petitioner is to raise an
industrial dispute before the competent Forum. Our Apex Court of India delivered a judgment which is reported in Dharampal Vs. National Engg.
Inds. Ltd. and Another, wherein in Para-6 it was held thus:
The learned Single Judge therefore was not justified in holding that the Tribunal has committed error while granting approval to the action of the
employer in dismissing the workman. The appropriate course for the original appellant was to have invoked S. 10 of the Industrial Disputes Act to
work out his rights. The Division Bench of the High Court is therefore justified in setting aside the order passed by the learned Single Judge and
restoring that of the Industrial Tribunal. In the circumstance no interference is called for by us and hence this appeal is dismissed.
It is evident from the above judgment that when approval is granted by the Tribunal for the punishment imposed, High Court cannot interfere in it
under Article 226 or 227 of the Constitution of India.
In another judgment of the Constitution Bench of our Hon''ble Supreme Court reported in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs.
Ram Gopal Sharma and Others, wherein in Para-14 it was held thus:-
.....But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a
complaint u/s 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee
and is intended to save his time and trouble in as much as he can straightway make a complaint before the very authority where the industrial
dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a
reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative
for contravention of the mandatory conditions contained in the provision or where the approval is refused, a workman should still make a complaint
u/s 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside u/s 33A and that till such time he should
suffer misery of unemployment in spite of statutory protection given to him by the provision to Section 33(2)(b). It is not correct to say that where
the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be
meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if
aggrieved by the order of the approval granted.
In the above judgment, the Constitutional Bench of the Supreme Court has held that if approval is given by the authority and if the employee is
aggrieved by such an approval, he is entitled to make a complaint u/s 33A challenging the order granting approval on any of the grounds available
to him. Section 33A is available only to an employee and is intended to save his time and trouble in as much as he can straightaway make a
complaint before the very authority where the industrial dispute is pending between the parties.
The petitioner has not chosen to invoke Section 10 of the Industrial Dispute Act or Section 33A of the Act, but he filed the above writ petition.
This Court cannot interfere with the approval granted by the Tribunal u/s 226 of the Constitution of India. Hence, this writ petition is liable to be
dismissed and accordingly dismissed. No costs.