Delhi High Court
St. Stephens Hospital vs The Workman Sh. S.K. Adhikari on 29 September, 2008
Author: Sudershan Kumar Misra
Bench: Sudershan Kumar Misra
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No.18969/2006
% Date of Decision : September 29, 2008
St. Stephens Hospital .....Petitioner
Through : Mr. Rajeev Sharma,
Advocate
Versus
The Workman Sh. S.K. Adhikari ....Respondent
Through : Mr. R.P. Sharma,
Advocate
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
SUDERSHAN KUMAR MISRA, J
1. The petitioner, St. Stephens Hospital has approached this
Court against an order dated 16th May, 2006 passed by the
Labour Court-XX (Fast Track), Karkardooma Courts, New Delhi in
ID No.595/2006 (Old No.550/1998). By that order, the Labour
Court set aside the enquiry that was instituted by the Hospital
against the respondent/workman on the ground that the Enquiry
Officer, who happened to be retired District Judge, had violated
the principles of natural justice by not permitting the workman
to be represented by one Mr. Hamilton despite a request by the
respondent in that behalf. The Labour Court felt that as a result
WP (C) No.18969/2006 Page 1 of 9
of this refusal, the respondent/ workman was denied a proper
and fair opportunity to defend himself and for that reason, the
enquiry proceedings stood vitiated and deserve to be set aside.
As requested by the petitioner in its written statement before
the Labour Court, after the enquiry was set aside for the
aforesaid reason, the petitioner management was given an
opportunity to prove its charges against the respondent/
workman in the Court. The matter was thereafter posted for
management evidence.
2. The respondent was working with the petitioner as a
Cashier since 1972. On 4.7.1994, the respondent was served
with a charge sheet, wherein the respondent was stated to be
responsible for shortage of cash of Rs.6,000/-, and for tampering
with certain vital records of the section relating to the matter.
The petitioner appointed one Sh. R.N. Mehrotra, a retired
Additional District Judge, as the Enquiry Officer to conduct the
enquiry. The respondent requested the Enquiry Officer to permit
one Mr. Hamilton to represent him in the enquiry. At that time,
Mr. Hamilton was the President of the St. Stephens Hospital
Employees Association. On 25th August, 1994, the Enquiry
Officer rejected this request on the ground that Mr. Hamilton
had never been an employee of the Hospital and he was,
therefore, an outsider. Ultimately, after the enquiry was
completed, the petitioner terminated the services of the
respondent/workman on 27th November, 1995.
3. Consequent upon his termination, the respondent raised
an industrial dispute against the petitioner and the matter came
WP (C) No.18969/2006 Page 2 of 9
to be referred to the Labour Court by the Government. One of
the issues framed by the Labour Court was, "whether valid and
proper enquiry in accordance with the principles of natural
justice was conducted against the workman." Whilst examining
the argument of the respondent that he was not provided a
proper opportunity to defend himself in the enquiry because he
was not permitted to seek the assistance of a person of his
choice from the Union, the Labour Court accepted the fact that
although Mr. Hamilton, who is a person chosen by the petitioner,
was not a worker in St. Stephens Hospital,
"but being the President of St. Stephens
Hospital Employees Association, he has every
right to defend the workman in enquiry
proceedings who is a member of the said
association. Accordingly, the workman was
entitled to seek assistance of Mr. Hamilton
during the enquiry proceedings as Mr.
Hamilton was the President of the Association
of which the workman was a member. As
such, the workman was denied assistance of
Union representative of his liking who was
competent to defend him."
Consequently, this issue was decided in favour of the
respondent and the following order was passed :
"As such the enquiry is not in accordance
with the principles of natural justice. As such
the enquiry proceedings stand vitiated for
the reason stated above. Accordingly the
enquiry is set aside. The management in its
written statement has stated that in case the
enquiry is set aside the management may be
given opportunity to prove the charges
against the workman in the Court.
Accordingly opportunity is given to the
management to prove the charges against
the workman in the Court."
4. It is the petitioner's case that the finding by the Labour
Court to the effect that by rejection to the request of the
WP (C) No.18969/2006 Page 3 of 9
respondent, to be represented by Mr. Hamilton, the petitioner
has violated the principles of natural justice, is ex-facie
erroneous in as much as the rules governing domestic enquiries
in force, in petitioner hospital including, inter alia, Rule 6, clearly
provide that a charge sheeted employee can only seek
assistance of a co-employee. The relevant portion of the said
rules reads as follows ;
"6(c) Assisting Officer: If the charge-sheeted
employee desires in writing, the services of
any co-employee to assist him in the enquiry,
the Medical Superintendent may, subject to
exigencies of work and subject to the
concurrence of the co-employee, allow the
co-employee to assist the charge-sheeted
employee during the enquiry proceedings."
In response, the respondent has taken the stand that no such
rules were in force in the petitioner hospital, and even
otherwise, the alleged Rule 6(c) is against the principles of
natural justice and that it is obviously framed to deny effective
assistance to the workman during domestic enquiries. It was
therefore contended that this rule is liable to be declared illegal
as the same is heavily loaded in favour of the employer.
5. To my mind, the issues that require consideration here are;
i) Whether a workman has a right of being represented by the
person he wants in the domestic enquiry;
ii) Can such right be restricted by such rules or regulations; and
iii) As a corollary, do such rules or regulations permitting the
employee to be represented only by a co-employee conflict with
the principles of natural justice?
WP (C) No.18969/2006 Page 4 of 9
6. In support of his case, counsel for the petitioner has relied
on Kalindi and Ors Vs. Tata Locomotive and Engineering
Co. Ltd (1960) 3 SCR 407 wherein the Supreme Court held as
follows;
"5. Our conclusion therefore is 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."
7. This aspect also came to be examined by the Supreme
Court in Crescent Dyes and Chemicals Ltd. Vs. Ram
Naresh Tripathi, (1993) 2 SCC 115. There, the delinquent
workman's right of representation was regulated by the
standing orders which permitted a clerk or a workman working
within the same department to represent him. This right was
further extended under the Maharashtra Recognition of Trade
Unions and Unfair Labour Practices Act, 1971 which also
permitted the delinquent to be represented through an officer/
staff member or member of the Union provided he was duly
authorized in this behalf by the State Government. However, in
that case, the delinquent workman desired to be represented in
the domestic enquiry by his agent, Mr.Talraja. However, since
the said Mr. Taljara did not fall within the categories mentioned
in the aforesaid standing orders or Statute, this request was
denied. In reaching its conclusion, the Supreme Court examined
a number of decisions of English Courts, where also, the right to
be represented by a person of one's own choice is not an
WP (C) No.18969/2006 Page 5 of 9
absolute right and can be regulated by the law, or by rules and
regulations. It went on to hold as follows :
"13. The law in India also does not concede
an absolute right of representation as an
aspect of the right to be heard, one of the
elements of principle of natural justice. It has
been ruled by this Court in (i) Kalindi (N) Vs.
Tata Locomotive & Engineering Co. Ltd.,
Jamshedpur, (ii) Brooke Bond India (P) Ltd.
Vs. Subba Raman (S.) and (iii) Dunlop Rubber
Co. Vs. Workmen that there is no right to
representation as such unless the company
by its Standing Orders recognises such a
right."
"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....."
8. Following the above judgment in Bharat Petroleum
Corpn. Ltd. Vs. Maharashtra General Kamgar Union,
(1999) 1 SCC 626, the Supreme Court held that:
"27. 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...."
9. Similarly in Indian Overseas Bank Vs. Indian Overseas
Bank Officers' Assn.,(2001) 9 SCC 540 it was held that:
"6. ......The issue ought to have been
considered on the basis of the nature and
character or the extent of rights, if any, of an
officer-employee to have in a domestic
disciplinary enquiry, the assistance of
someone else to represent him for his
defence in contesting the charges of
misconduct. This aspect has been the
subject-matter of consideration by this Court
WP (C) No.18969/2006 Page 6 of 9
on several occasions and it has been
categorically held that the law in this country
does not concede an absolute right of
representation to an employee in domestic
enquiries as part of his right to be heard and
that there is no right to representation by
somebody else unless the rules or regulation
and standing orders, if any, regulating the
conduct of disciplinary proceedings
specifically recognise such a right and
provide for such representation.....
Irrespective of the desirability or otherwise of
giving the employee facing charges of
misconduct in a disciplinary proceeding to
ensure that his defence does not get
debilitated due to inexperience or personal
embarrassments, it cannot be claimed as a
matter of right and that too as constituting
an element of principle of natural justice to
assert that a denial thereof would vitiate the
enquiry itself."
10. Also in National Seeds Corpn. Ltd. Vs. K.V. Rama
Reddy,(2006) 11 SCC 645, the Supreme Court held that:
"7. The law in this country does not concede
an absolute right of representation to an
employee in domestic enquiries as part of his
right to be heard and that there is no right to
representation by somebody else unless the
rules or regulation and standing orders, if
any, regulating the conduct of disciplinary
proceedings specifically recognise such a
right and provide for such representation..."
11. In view of the above judgments, the issue regarding the
right of representation which an employee has in domestic
enquiries, is no longer res integra. The law is that the right of
representation to an employee in domestic enquiries, being a
limb of right to be heard, is governed by the rules or regulations
and standing orders, if any. In other words, the employee has no
right to be represented by the person he wants, if the rules or
regulations governing such enquiry do not permit it. In the case
at hand, the relevant rules provide that the delinquent is only
WP (C) No.18969/2006 Page 7 of 9
allowed to be represented by a co-employee. Therefore, the
test to determine whether the respondent could be validly
represented by Mr. Hamilton would be to enquire whether the
said Mr. Hamilton is the respondent's co-employee. The fact
that Mr. Hamilton also happens to be the President of the
Employees Association is irrelevant. That Mr. Hamilton was not
employed by the petitioner hospital, is undisputed.
Consequently, the respondent had no right to be represented in
the domestic enquiry by Mr. Hamilton.
12. Regarding the issue whether such rules or regulations
restricting the delinquent workman's right to be represented
before the domestic enquiry by a co-worker only, are against the
spirit of principles of natural justice, the Supreme Court in
Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh
Tripathi (supra) in paragraph 17 held that:
"17..........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. In the instant case
the delinquent'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 right 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 dispatch and is not prolonged
endlessly. Secondly, when the person
defending the delinquent is from the
department or establishment in which the
delinquent is working he would be well
conversant with the working of that
department and the relevant rules and
WP (C) No.18969/2006 Page 8 of 9
would, therefore, be able to render
satisfactory service to the delinquent.
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."
Looking to these observations of the Supreme Court, this
question is also no longer res integra. The impugned regulation
permitting the employee to be represented only by a co-
employee cannot be said to be in conflict with the principles of
natural justice and therefore cannot be declared illegal on that
account.
13. Under the circumstances, in the light of the observations
made above, and without going into the merits of the case, the
petition is allowed. The impugned order dated 16.5.2006 is
quashed. Since the other issues raised before it have not been
examined on merits, the matter is remanded to the Labour
Court with the direction to decide them afresh within six months
from today.
14. The writ petition is disposed of accordingly.
Sudershan Kumar Misra, J.
September 29, 2008 mb/ib WP (C) No.18969/2006 Page 9 of 9