India: Soliciting Assistance of Co-employee/Lawer in the Discplinary Enquiry: Judicial Structure

Last Updated: 13 June 2002
Article by Shivaji Rao

Proposition of law and limitations on the choice of delinquent employee while opting for assistance in the matters of disciplinary enquiry: The basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided for in the Rules. For example, Rule 1712 of the Railway Establishment Code provides as under:

"The accused railway servant may present his case with the assistance of any other railway servant employed on the same railway (including a railway servant on leave preparatory to retirement) on which he is working."

The right to representation, therefore, has been made available in a restricted way to a delinquent employee. He has a choice to be represented by another railway employee, but the choice is restricted to the Railway on which he himself is working, that is, if he is an employee of the Western Railway, his choice would be restricted to the employees working on the Western Railway. The choice cannot be allowed to travel to other Railways.

Similarly, a provision has been made in Rule 14(8) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, where too, an employee has been given the choice of being represented in the disciplinary proceedings through a co-employee. In Kalindi v. Tata Locomotive & Engineering Company Ltd., AIR 1960 SC 914 , a Three-Judge Bench observed as under (Paras 3 to 5 of AIR) "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 witnesses, 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 expected to examine and cross-examine witnesses with a fair amount of skill. We have to remember however in 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 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 witnesses in his favour".

(emphasis added)

It is helpful to consider in this connection the fact that ordinarily in enquiries before domestic tribunals the person accused of any misconduct conducts his own case. Rules have been framed by Government as regards the procedure to be followed in regards the procedure to be followed in enquiries against their own employees. No provision is made in these rules that the person against whom an enquiry is held may be represented by anybody else. When the general practice adopted by domestic tribunals is that the person accused conducts his own case, we are unable to accept an argument that natural justice demands that in the case of enquiries into a charge-sheet of misconduct against a workman he should be represented by a member of his Union. Besides it is necessary to remember that if any enquiry is not otherwise fair, the workman concerned can challenge its validity in an industrial dispute.

In the above premise, in the case of Bharat Petroleum Corporation Ltd., Vs. Maharashtra General Kamgar Union and others, AIR 1999 SC 401 the Apex court arrived at conclusion 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 discretion can and may allow his employee to avail himself of such assistance."

In another decision, namely, Dunlop Rubber Company v. Workmen AIR 1965 SC 1392 it was laid down that there was no right to representation in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same.

The matter again came to be considered by a Three Judge Bench of the Supreme Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115 : (1993 AIR SCW 1106), and Ahmadi, J. (as he then was) in the context of Section 22(ii) of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971, as also in the context of domestic enquiry, upheld the statutory restrictions imposed on delinquent's choice of representation in the domestic enquiry through an agent. It was laid down as under:-

"11. 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 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 represented by a clerk or workman working in the same department as the delinquent. So also the right to representation can be regulated or restricted by statute."

In para 12 of the judgment the Apex court has concluded "it is therefore, clear from the above case law that the right to be represented through counsel or agent can be restricted, 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 right . The requirement of rule of natural justice in so far as the delinquent’s right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent…"

The said proposition of law has been reiterated in the case of M/s. CIPLA Ltd. and others, Vs. Ripu Daman Bhanot and another, AIR 1999 SC 1635.

The earlier decisions in Kalindi v. Tata Locomotive & Engineering Co. Ltd. (AIR 1960 SC 914) (supra); Dunlop Rubber Co. v. Workmen (AIR 1965 SC 1392) (supra) and Brooke Bond India (P) Ltd. v. Subba Raman (S.) (1961) 2 Lab LJ 417, were followed and it was held that the law in this country does not concede an absolute right of representation to an employee as part of his right to be heard. It was further specified that there is no right to representation as such unless the Company, by its Standing Orders, recognizes such a right. In this case, it was also laid down that a delinquent employee has no right to be represented in the departmental proceedings by a lawyer unless the facts involved in the disciplinary proceedings were of a complex nature in which case the assistance of a lawyer could be permitted.

The age old judicial concept " a man not only has right to speak from his own voice, but also has right to speak from his representative voice when his life, liberty, and lively-hood is at stake" – this concept seems to be withering away day by day. The Hon’ble Gujarat High Court in the case of K.C. Mani vs. Central Warehousing Corpn., (1994 LLR 312) has laid down illustrative tests to determine such request for soliciting an assistance of legally trained mind / co-employee:

  • Whether it is really a fight between two unequals ?
  • Whether the nature of charge is simple or complex ?
  • Whether the charge is such that some documents are required to be proved or disproved either
  • because they are false or fabricated.
  • Is it a case where there are number of witnesses to be examined and re-examined?
  • Whether any expert witness is to be cross examined ?
  • What is the intellectual capacity, status and experience of the delinquent facing the departmental proceedings ?

If the enquiry officer is a `trained personnel’ that by itself does not mechanically vest any right in the delinquent to have a legal assistance irrespective of facts and circumstances. The answer rests on facts and circumstances and on the answer to following two questions.

  • Whether the case presents any legal and factual complexity making the delinquent totally handicapped to defend his case.
  • Whether the delinquent is academically and psychologically fit and competent enough to defend himself in absence of outside legal assistance.

To conclude, right to be represented by a counsel or an agent of one’s own choice under the decision of the English Courts is not absolute right and cannot be controlled, restricted or regulated by law, rules or regulations. However, if the charges are of serious nature, the delinquent request to be considered. So far as the law applicable in India is concerned, there is no right to representation as such unless the company by its Standing Orders recognizes such right. It was held that right to be represented through counsel or Agent can be restricted, controlled or regulated by Statutes, rules, regulations or Standing Orders.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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