The Mathrubhumi Printing And ... vs The General Secretary on 19 May, 2025

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Kerala High Court

The Mathrubhumi Printing And ... vs The General Secretary on 19 May, 2025

This writ appeal is filed under Section 5(i) of the Kerala High Court Act, 1958, by the petitioner in W.P.(C) No.11745 of 2024. The writ petition was filed by the appellant under Article 226 of the Constitution of India, seeking the following reliefs:

"a) A writ of certiorari or any other appropriate writ or order quashing and setting aside Exhibit P-7.

b) Hold that ID No. 01/2016 is not maintainable as the employee concerned is not a workman as defined in Section 2(s) of the I.D.Act 1947."

2. The appellant is a Newspaper establishment represented by its Managing Director. One Mr.C.Narayanan (for convenience of reference hereinafter referred as 'delinquent') was a Chief Sub Editor of one of the Units of the appellant Newspaper. The appellant initiated disciplinary proceedings against the delinquent on the allegation that he abused the News Editor. As per the order dated 05.06.2015, the delinquent was discharged from service followed by a domestic enquiry. The 1st respondent- Trade Union raised an industrial dispute against the punishment imposed on the delinquent and the Government referred the issue to the Industrial Tribunal as per order dated 15.03.2016. Before WA NO. 262 OF 2025 3 2025:KER:33873 the Industrial Tribunal, the 1st respondent filed Ext.P1 claim statement and the appellant filed Ext.P2 counter statement.

3. From the side of the appellant, MW1 was examined and Exts.M1 to M3 were marked before the Industrial Tribunal. The respondent therein did not examine any witness or produce any documentary evidence. After analysing the evidence on record, and hearing the parties, the tribunal, as per Ext.P7 preliminary order dated 06.03.2024 held that the delinquent is a workman as defined in the Industrial Disputes Act and the enquiry conducted was in violation of principles of natural justice. The aggrieved appellant filed W.P.(C)No.11745 of 2024 before this court and as per the impugned judgment dated 24.01.2025, the learned Single Judge dismissed the writ petition concurring with the finding of the Industrial Tribunal. Being aggrieved, the appellant filed this writ appeal.

4. Heard the learned counsel for the appellant and the learned counsel for the respondents.

5. The learned counsel for the appellant vehemently argued that as per Ext.P5-Manual of Procedures for the Editorial Department, a Chief Sub Editor, or Content Chief means a person who takes charge of a shift at the newsdesk, allocates and WA NO. 262 OF 2025 4 2025:KER:33873 supervises the work of one or more Sub Editors and is generally responsible for the determination of news space and the general display of news in the news paper or in a particular edition or part of it. By relying on Rules 3 and 4 of Ext.P5 the learned counsel argued that the delinquent was mainly doing supervisory duties and hence will fall under the exclusionary clause of the definition of workmen under Section 2(s) of the Industrial Disputes Act. It is also the contention of the learned counsel that the decision of the Apex Court in Professor Ramesh Chandra v. University of Delhi [(2015) 5 SCC 549] relied by the learned Single Judge is not applicable to the facts of this case, since in Ramesh Chandra [(2015) 5 SCC 549] the enquiry officer was a retired Judge of the High Court and the presenting officer also was legally qualified person and whereas the enquiry officer in the present case is a legal practitioner and presenting officer is another employee of the appellant company holding the post of Regional Manager. The learned counsel for the appellant placed reliance on the judgment of the High Court of Calcutta dated 06.07.2018 in CAN 1027 of 2016 in MAT 1800 of 2016 in Convent of Our Lady of Providence Girls v. Anita Nigam and others and that of the Bombay High Court dated 03.02.2025 in Writ Petition No.550 of WA NO. 262 OF 2025 5 2025:KER:33873 2025 in The Indian Express Pvt. Ltd. and others v. Prashant Ambekar argued that the decision in Ramesh Chandra [(2015) 5 SCC 549] is distinguished in those cases and the permission for engaging a lawyer to the delinquent is required only if the presenting officer is also a lawyer.

6. On the other hand, the learned counsel for the respondents argued that merely for the reason that in manual of procedures for the editorial department, the word 'Supervise' is included in the nature of duties of a Chief Sub Editor, the delinquent cannot be treated as a person working in a managerial capacity. The duties assigned to him are that of a working journalist as defined under Section 2(f) of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 ('Working Journalists Act' in short). By relying on clause 12 of the Schedule-l.B of Ext.R1(b) Government Order dated 11.11.2011, the learned counsel argued that the duties of the Chief Sub-Editor defined therein is not that of a person working in a managerial capacity. It is further submitted by the learned counsel that as found by the learned Single Judge, natural justice was denied to the delinquent by not WA NO. 262 OF 2025 6 2025:KER:33873 permitting him to engage a legal practitioner during the enquiry proceedings.

7. In Ext.P7 Preliminary order, the Industrial Tribunal considered two preliminary issues. They are:

"1) Whether Sri.C.Narayanan is a 'workman' as defined under Section 2(f) of the Working Journalists and other Newspaper Employees (Conditions of Services) and Miscellaneous Provisions Act 1955 and was also a workman coming within the definition of 'workman' as defined under Section 2(s) of the Industrial Disputes Act? Or not? And

2) Whether the enquiry was conducted incompliance with the principles of natural justice and whether the findings of the enquiry officer are supported by legal evidence or not?"

8. As far as the first issue is concerned, the Industrial Tribunal found that though there is some amount of supervision and control cast upon the post of Chief Sub-Editor, those responsibilities are common and general in nature which are incidental to the nature of main work as Sub-Editor. Even though the management has contended that the delinquent was employed mainly in a managerial or administrative capacity, apart from mere averment, they have not placed any valid materials to substantiate their contention. The term "mainly" used in the definition of 'workman' in the Industrial Disputes Act as well as in the definition of 'working journalist' in the Working Journalists Act WA NO. 262 OF 2025 7 2025:KER:33873 means that the ultimate power of control or supervision in regard to recruitment, promotion, etc. Admittedly, the delinquent has no such power of control or supervision as defined in the provisions of the Act. Apart from the general supervision and control over some of his subordinate employees in his department or section, the delinquent herein has no such power of control or supervision in regard to recruitment, promotion, etc.

9. As far as issue No.2 is concerned, the Tribunal found that in view of the law laid down by the Apex Court in Ramesh Chandra [(2015) 5 SCC 549] and from the facts and circumstances of the instant case, the denial of assistance of a legal practitioner to the delinquent employee is unfair and violation of the principles of natural justice.

10. The learned Single Judge in the impugned judgment concurred with the findings of the Industrial Tribunal and dismissed the writ petition. Paragraphs 17 to 20 and operative portion of that judgment read thus:

"17. As rightly found by the Industrial Tribunal, the limited amount of supervision and control conferred on a Chief Sub Editor are common and general in nature and are incidental to the nature of main work as Sub Editor. The term "mainly"

used in the definition of workman in the Industrial Disputes Act and Working Journalists Act means the ultimate power WA NO. 262 OF 2025 8 2025:KER:33873 of control or supervision in regard to recruitment, promotion, etc. The employee concerned in this writ petition has no such power. The employee would not come within the purview of the exclusionary clause of the definition of workman. Therefore, I do not find any illegality in the findings of the Industrial Tribunal in that regard.

18. The next question is as regards violation of principles of natural justice. The contention of the employee is that he was not given permission to engage a lawyer to defend him in the domestic enquiry proceedings. The request of the petitioner to allow him to be defended by an Advocate in the enquiry proceedings was rejected on the ground that the presenting officer is not a law graduate nor a person trained to conduct enquiry or to prosecute charges in domestic enquiry.

19. The employee submitted that he could not procure the service of a co-worker as none of them were bold enough to help him in the enquiry. The Tribunal noted that the enquiry officer appointed by the petitioner is a senior legal practitioner. The presenting officer is a person holding the post of Regional Manager, having sufficient experience in presenting the case before the enquiry officer.

20. In Ramesh Chandra v. Delhi University [(2015) 5 SCC 549], the Hon'ble Apex Court held that if any person who is or was a legal practitioner, including a retired Hon'ble Judge is appointed as inquiry officer in an inquiry initiated against an employee, the denial of assistance of legal practitioner to the charged employee would be unfair. Taking into account the law laid down by the Hon'ble Apex Court, it has to be held that the petitioner did not extend a fair and reasonable opportunity to the employee to defend WA NO. 262 OF 2025 9 2025:KER:33873 the charges. The principles of natural justice are therefore violated."

11. In the disciplinary proceedings the delinquent was found guilty of abusing the News Editor and consequently he was discharged from service. During domestic enquiry he was not permitted to be assisted by a legal practitioner though he requested for the same. He was permitted to get the assistance of a co-worker if necessary to assist him during the enquiry proceedings. According to the respondents, the delinquent could not get the assistance of any other co-worker, as none of them were dared enough to stand against the management. By relying on the Judgment of the Apex Court in Ramesh Chandra [(2015) 5 SCC 549] the Industrial Tribunal as well as the learned Single Judge found that in the enquiry proceedings natural justice was violated by not permitting legal assistance to the delinquent.

12. Section 2(s) of the Industrial Disputes Act defines "Workman" as under:

"'workman' means any person (including on apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or WA NO. 262 OF 2025 10 2025:KER:33873 retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); ог

(ii) who is employed in the police service as an officer or other employee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

13. Section 2(f) of the Working Journalists Act reads thus:

"working journalist" means a person whose principal avocation is that of a journalist and who is employed as such, either whole-time or part-time, in, or in relation to, one or more newspaper establishments, and includes an editor, a leader-writer, news-editor, sub-editor, feature- writer, copy-tester, reporter, correspondent, cartoonist, news-photographer and proof-reader, but does not include any such person who-

(i) is employed mainly in a managerial or administrative capacity; or

(ii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature".

WA NO. 262 OF 2025 11 2025:KER:33873

14. The appellants rely on Rules 3 and 4 of Ext.P5 Manual of Procedures for editorial department and Clause 12 of schedule l.B of Ext.P6 [Ext.R1(b)] Government order dated 11.11.2011 produced in the writ petition to argue that the duty of the delinquent was managerial in nature. The said Clauses read thus:

"3 a) Chief Subs are empowered to supervise and monitor the work of those subordinate to them--that is all Subs and Senior Subs attached to their units.

b) Along with the power, Chief Subs have the responsibility to ensure that work is done properly; mistakes are eliminated: and copy is as presentable as it can possibly be.

c) Chief Subs must on every day, report to the News Editor, lapses and outstanding performances.

4. Chief Subs must assign editing work to their subordinates keeping in mind aptitudes and abilities of their juniors as far as practicable".

and "12. "Chief Sub-Editor or Content Chief" means a person who takes charge of a shift at the news desk, allocates and supervises the work of one or more sub-editors and is generally responsible for the determination of news space and the general display of news in the newspaper or in a particular edition or part of it."

15. In Ananda Bazar Patrika (P) Ltd. v. Workmen [(1970) 3 SCC 248], relied by the Tribunal and learned Single Judge, the Hon'ble Apex Court held that the question whether a person is employed in a supervisory capacity or on clerical work WA NO. 262 OF 2025 12 2025:KER:33873 depends upon whether the main and principal duties carried out by the employee are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work, then it would have to be held that he is employed in a supervisory capacity. Conversely, if the main work done is of a clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a Clerk into one in supervisory capacity.

16. In the impugned judgment the learned Single Judge found that the limited amount of supervision and control conferred to a Chief Sub Editor are common and general in nature and are incidental in the nature of main work as Sub Editor. The term 'mainly' used in the definition of workman in the Industrial Disputes Act and Working Journalist Act means the ultimate power of control or supervision in regard to recruitment, promotion etc. It is found by the learned Single Judge that the employee concerned in the writ petition has no such power. Therefore, the employee would not come within the purview of the exclusionary clause of the definition of workman. Having considered Rules 3 WA NO. 262 OF 2025 13 2025:KER:33873 and 4 of Ext.P5 and Clause 12 of schedule l.B of Ext.P6, the definition under Section 2(f) of 'working journalist' in the Working Journalist Act as well as definition of 'workman' under Section 2(s) of the Industrial Disputes Act, we find no sufficient reason to arrive at a different finding than that arrived at by the learned Single Judge.

17. In Ramesh Chandra [(2015) 5 SCC 549] the Apex Court considered that the enquiry officer in that case was a retired judge of the High Court having legal acumen and experience and the presenting officer also was a person who had sufficient experience in presenting the case before the enquiry officer. It was in that circumstance the Apex Court held that denial of assistance of legal practitioner to the employee would be unfair.

18. In the Chairman, State Bank of India and another v. M.J. James [(2022) 2 SCC 301] in paragraph 20, the Apex Court held thus:

"20 Now, we need to advert our attention on the aspect of the choice of representation in domestic inquiry. Both sides rely on the dictum of this Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, [(1993) 2 SCC 115], and National Seeds Corporation Ltd v KV Rama Reddy, [(2006) 11 SCC 645], which hold that the right to be represented by a third person in domestic WA NO. 262 OF 2025 14 2025:KER:33873 inquiries/tribunals is based upon the precept that it is not desirable to restrict right of representation by a counsel or agent of one's choice. The ratio does not tantamount to acceptance of the proposition that such a right is an element of principles of natural justice, and its denial would immediately invalidate the inquiry. Representations are often restricted by a law, such as under S.36 of the Industrial Disputes Act, 1947, as also by certified Standing Orders. The aforementioned two decisions ascribe to catena of decisions, including English case law on this subject, which accept that the right to be legally represented depends on how the rules govern such representation. Further, if the rules are silent, the party has no absolute right to be legally represented. However, the entitlement of a fair hearing is not to be dispensed with. What fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it. This Court in Crescent Dyes and Chemicals Ltd (supra), observed as follows:

"17. 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 delinquent has 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 does not extend to a right to be represented through counsel or agent....."

Thus, the right to be represented by a counsel or agent of one's choice is not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or WA NO. 262 OF 2025 15 2025:KER:33873 regulations. However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of fair hearing, which is applicable in judicial as well as quasi-judicial decisions."

[Emphasis Supplied]

19. In Rajasthan Marudhara Gramin Bank (RMGB) and another v. Ramesh Chandra Meena and another [(2022) 3 SCC 44] the Apex Court held thus:

"As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official/employee from the Bank only. The Bank has justified its action of not permitting ex - employee of the Bank as DR and according to the Bank, the ex - employee who themselves may have been subject of a disciplinary enquiry/ chargesheet/ dismissed from service; the ex-employee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice, the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex- employee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through ex-employee WA NO. 262 OF 2025 16 2025:KER:33873 of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and/or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice." [Emphasis supplied]

20. In the judgement of Calcutta High Court dated 06.07.2018 in the matter of Convent of Our Lady of Providence Girls the decision in Ramesh Chandra [(2015) 5 SCC 549] is distinguished. In that judgment, after surveying various judgments of the Apex Court on the point, it was held that a lawyer's assistance can never be claimed as of right unless specifically provided in the rules governing the enquiry and that in a case calling for exercise of discretion, the court has to apply its WA NO. 262 OF 2025 17 2025:KER:33873 mind to the materials on record for arriving at a finding as to whether the discretion has been properly exercised by the employer or the enquiry officer, as the case may be, and an appropriate decision has to be taken so that reasonable opportunity which is real, is extended to the delinquent. In paragraph 39 of that judgment, the Calcutta High Court held that paragraph 70 of the decision in Ramesh Chandra is confined to the facts and circumstances that were before the Supreme Court and at best it may have application in cases wherever a retired High Court Judge is appointed as enquiry officer to conduct an enquiry by an employer, whom the Judge had represented prior to his elevation. After considering the question whether the decision in Ramesh Chandra has applicability even when a lawyer is appointed as an enquiry officer by an employer, the Calcutta High Court held that the two-Judge Bench while deciding Ramesh Chandra did not have the benefit to consider the law laid down by the Larger Bench in Saran Motors Private Ltd., New Delhi v. Vishwanath [1964 (2) LLJ 139]. Importantly, in the case decided by the Calcutta High Court, there was no pleading in the writ petition that the enquiry officer has been a lawyer for WA NO. 262 OF 2025 18 2025:KER:33873 the employer and it is likely to be biased against the delinquents therein.

21. In the judgment of the Bombay High Court dated 03.02.2025 in Writ Petition No.550 of 2025 in the Indian Express Pvt. Ltd. case also by considering the facts of the case, it was held that the judgment in Ramesh Chandra [(2015) 5 SCC 549] cannot be cited by the employee to seek engagement of an advocate to act as defence representative merely because the enquiry officer in that case happens to be a legal practitioner. The court noted that in the judgments of that Court in J.K Aggarwal v. Haryana Seeds Development Corpn. Ltd. [(1991) 2 SCC 283] and in Port of Bombay v. Dilipkumar Raghavendranath Nadkarni [(1983) 1 SCC 124] relied by the employee, the background and expertise of a presenting officer for deciding the issue of grant of opportunity to engage a legal practitioner as defence representative was dealt with. It was under that circumstance, the Bombay High Court held that as a matter of right, the employee cannot seek the engagement of a lawyer to defend.

22. A Division Bench of this Court in Vaikom Taluk Co- operative Agricultural and Rural Development Bank Ltd. v.

WA NO. 262 OF 2025 19 2025:KER:33873 Anilkumar and Others [2020 (4) KLT 115] after considering various judgments of the Apex Court, including Ramesh Chandra [(2015) 5 SCC 549] held thus:

"Thus, it is evident after referring to its earlier decisions in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavenranath Nadkarni and Others reported in 1983 (1) SCC 124 (1983 KHC 412 : 1983 SCC (L&S) 61 : AIR 1983 SC 109 : 1983 (1) LLJ 1 : 1983 Lab IC 419 : 1983 Mah LJ 1 : 1983 (1) LLN 314) and in J. K. Aggarwal v. Haryana Seeds Development Corporation Ltd., and Others reported in 1991 (2) SCC 283 (1991 KHC 928 : 1991 SCC (L&S) 483 : 1991 (16) ATC 480 : AIR 1991 SC 1221 : 1991 Lab IC 1008 : 1991 (1) CLR 988) the Apex Court held that if any person who is or was a legal practitioner, including a retired High Court Judge is appointed as an Enquiry Officer in an enquiry initiated against an employee denial of assistance of legal practitioner to the charged employee would be unfair. When that be the exposition law by the Hon'ble Apex Court in paragraph 30 the view taken and the conclusion arrived at by the learned Single Judge taking note of the fact that the Inquiry Officer is a legal practitioner cannot be upturned by accepting the contentions raised by the learned counsel for the appellant based on the decision relied on by him, referred hereinbefore. Here, the first respondent is pitted against a trained mind inasmuch as the Inquiry Officer is a practicing lawyer. When the Inquiry Officer is a person having legal acumen and experience the conduct of the enquiry proceedings and appreciation of evidence will also be of a high level. In such circumstances, the WA NO. 262 OF 2025 20 2025:KER:33873 delinquent also must have an opportunity to present his defence in the same qualitative level to satisfy the rules of natural justice. Therefore, the rejection of the application filed by the writ petitioner to permit him to have the assistance of a lawyer in the disciplinary proceedings is unfair. In short, the impugned judgment cannot be said to be a decision which is illegal or perverse warranting interference in invocation of the power under S.5 of the High Court Act. According to us, the Writ Court arrived at the rightful conclusion bearing in mind the factual position and the law declared in paragraph 30 of the decision in Professor Ramesh Chandra's case (supra)".

23. From the judgments referred to above, conclusion is irresistible that whether an employee has to be permitted to engage a legal practitioner to assist him or her in the departmental enquiry is basically a question of fact to be decided on the basis of the seriousness of the allegations and nature of such allegations, the legal acumen of the enquiry officer and presenting officer, etc. The purpose of giving legal assistance to a delinquent employee is to provide him with sufficient opportunity to put forward his contentions without affecting his personal bias. In the instant case, the enquiry officer appointed by the appellant is a senior legal practitioner. The presenting officer is a regional manager. Naturally, he will be having sufficient experience in conducting disciplinary proceedings. In such circumstances, we WA NO. 262 OF 2025 21 2025:KER:33873 agree with the concurrent finding of the Industrial Tribunal and the learned Single Judge that the delinquent in the instant case is prejudiced by not permitting him to appoint a legal practitioner.

24. Having considered the pleadings and materials on record and the rival submissions made at the Bar, we find no sufficient ground to interfere with the impugned judgment of the learned Single Judge.

In the result, the writ appeal stands dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE DSV/-

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