Page |1

Dr. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LABOUR LAW
FINAL DRAFT

“ Analyzing Law Related to Domestic Enquiry under Labour Law.”

Submitted to: Submitted by:

Dr. R.K Yadav Akanksha Singh

Assistant Professor (Law) Roll No: 19

 Page |2

ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many individuals and organizations. I would
like to extend my sincere thanks to all of them.

I am highly indebted to Dr. R.K Yadav sir for his guidance and constant
supervision as well as for providing necessary information regarding the project &
also for his support in completing the project.

I would like to express my special gratitude and thanks to library staff for
providing relevant book and other materials for the completion of this seminar
paper.
My thanks and appreciations also go to my colleague in developing the seminar
paper and people who have willingly helped me out with their abilities.

Akanksha Singh
Roll No. 19
Sem – IX
 Page |3

Table of Contents
TABLE OF CASES ............................................................................................................................................ 4
INTRODUCTION ............................................................................................................................................. 5
DISCIPLINARY ACTION: AN INTRODUCTION ................................................................................................. 6
Background: .............................................................................................................................................. 6
What is a domestic enquiry?..................................................................................................................... 6
When an enquiry is invoked: .................................................................................................................... 7
Procedure of Enquiry: ............................................................................................................................... 7
Chargesheet: ............................................................................................................................................. 7
Enquiry Proceeding: .................................................................................................................................. 8
Findings: .................................................................................................................................................... 9
Decision:.................................................................................................................................................... 9
Service of order: ........................................................................................................................................ 9
REPRESENTATION BEFORE THE TRIBUNAL ................................................................................................. 10
Where services of an advocate cannot be dispensed with: ................................................................... 11
Where presenting officer is a lawyer: ..................................................................................................... 11
When employer is represented by legally trained prosecuter: .............................................................. 12
When provisions made by the service rules: .......................................................................................... 12
Presentation Officer having adequate legal knowledge: ........................................................................ 13
Other circumstances: .............................................................................................................................. 13
THE RIGHT OF A FAIR AND JUST TRIAL........................................................................................................ 14
A Case against representation: ............................................................................................................... 14
Natural justice in labour laws: ................................................................................................................ 15
Appearance of advocates: A fair principle .............................................................................................. 16
CHANGING FACE OF THE LAW: ................................................................................................................... 18
CONCLUSION............................................................................................................................................... 18
BIBLIOGRAPHY ............................................................................................................................................ 20
 Page |4

TABLE OF CASES

1. Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377.

2. Baidhar Das v. The State and Ors, AIR 1970 Ori 320.

3. Bata Shoe Co. Ltd v. Ganguly, (1961) 1 LLJ 303.

4. Brooke Bond India Ltd. v. Subbaraman, (1961) 2 LLJ 417 (SC).

5. Cipla Ltd v. Ripu Daman Bhanot (1999) 4 SCC 188.

6. C.L Subramanyan v. Collector of Customs, Cochin, AIR 1975 SC 951.

7. Crescent Dyes and Chemicals Ltd v. Ram Naresh Triadic, 1993 (66) FLR 537 (SC).

8. Dunlop Rubber Co. (I) Ltd v. Workmen, AIR 1965 SC 1392.

9. G.Nageshwar Rao v. A.P. State Road Transport Corporation, AIR 1959 SC 308.

10. Kharda & Co. Ltd v. Its Workmen, (1963) 2 LLJ 452.

11. Kraipak v. Union of India, AIR 1970 SC 150.

12. N.Kalindi v. Telco, AIR 1960 SC 914.

13. Photographic Co. Ltd v. Saumitra Mohan Kumar, (1984) 1 LLJ 471.

14. T.Muniswami v. State of Mysore, (1963) 3 LLJ 694.

15. The Board of Trustees of the Port of Bombay v. Kumar R. Nadkarni, 1983 (1) LLJ 1.
 Page |5

“Take away all our money, our great work, our entire establishment, but leave our discipline and
organization, and in a few years I shall have re-established myelf.”1

INTRODUCTION

Discipline, indeed is the very basis of a well organized establishment and the management must
take interest in upholding this. However, the power to supervise this discipline should not be
used as a garb to arbitrarily dismiss or punish a workman.

Every establishment is expected to maintain Model Standing Orders or Standard Standing Orders
which lay down the bye laws of the industry including does dealing with misconduct and
discipline.

With the growing importance of the basic tenets of human rights and equality and fairness for all,
law has made it necessary for an employer to work in a just and fair manner towards its workers
knowing that it is the weaker party in industrial relations. For this purpose courts have now
mandated employers to hold internal enquiries when misconduct or some other form of
indiscipline has occurred in the establishment. These enquiries mainly give an opportunity to the
worker to explain himself and defend himself from arbitrary punishment if his is innocent.

Further the law mandates that such disciplinary proceedings are very crucial for a worker who
has his livelihood and dignity at stake. Thus it is expected of employers to carry out these
enquiries in accordance with the principles of natural justice. However, there exists a big
controversy here as to the right of a worker to be represented by an advocate at such enquiries to
ensure smooth and efficacious running of such enquiry. One needs to see whether such a right is
a basic essential of natural justice or whether such a right would only take away the informal
atmosphere of a domestic enquiry. In order to answer these questions the researcher will take the
help of various judicial pronouncements and other legal dimensions.

1
Vijai Shanker, “Disciplinary Action & Natural Justice, Labour Law Journal, 1 LLJ 1971
 Page |6

DISCIPLINARY ACTION: AN INTRODUCTION

Background:

Most of Labour Law is judge made law. The Law relating to domestic enquiry particularly, is
mostly judge made. This is further argued by the fact that there is no statutory provision which
lays down that an enquiry must be held before punishment for misconduct, that principles of
natural justice must be followed in such enquiries, that the tribunal can’t interfere with the
findings of the enquiry officer, etc.2

What is a domestic enquiry?

An enquiry held by the management against its employees for certain acts of alleged misconduct
is called “Domestic enquiry”. Domestic enquiry is when fact-finding enquiries are conducted in
factories, industrial establishments etc, of a private sector. Such enquiries if carried out against a
Government Servant who is governed by the CCS (CCA) Rules, 1965, it is known as
“Departmental Inquiry.”3 Today it has become the law that no punishment for misconduct can be
given to an employee without first of all, proving that act and secondly, without giving him a
reasonable opportunity to defend himself in a proper domestic enquiry.4

The purpose and importance of such an enquiry is that in an age of economic growth and
liberalization, society requires industrial peace so that production may not be hampered. By
providing for such an enquiry a great deal of arbitrariness and consequential grievance and unrest
is avoided. Following this reasoning, enquiries against temporary workmen must also be held
giving him opportunity to defend himself and cross-examining the witnesses of the employer,
before he is punished.

A domestic enquiry is different from a preliminary enquiry. The sole object of a preliminary
enquiry is to find out whether a prima facie case has been made out against the worker or not. On
the other hand, a domestic enquiry is concerned with determining whether charges leveled
against the workers are established or not. Further, the report of preliminary enquiry serves the

2
Markanday Katju, Domestic Enquiry (Bombay; N.M.Tripathi Pvt Ltd, 1984)
3
D.R.K. Rao, “Domestic Enquiry Vs. Departmental Inquiry”, Labour Law Journal, 2005-I LLJ at 49
4
Kharda & Co. Ltd v. Its Workmen, 1963-II LLJ 452.
 Page |7

basis of framing charges against the worker, while in the case of a domestic enquiry; the report
helps determine the nature of punishment to be inflicted upon the workman who is found guilty.

Lastly, the preliminary enquiry need not confer to any rules and principles, whereas a domestic
enquiry is subject to the principles of natural justice and the procedure laid down by the courts in
their judicial decisions.

When an enquiry is invoked:

For an enquiry to be initiated there must be misconduct on the part of the employee which the
employer has complained against. The Model Standing Orders under the Industrial (Standing
Orders) Act, 1946 provides for disciplinary action for misconduct and gives a list of acts which
can be regarded as misconduct. Further the employee must be in service of the employer to have
an enquiry proceeding against him. Once an employee has ceased to be in service, the employer
cannot call for such enquiry proceedings against him.

Procedure of Enquiry:

All establishments whether they have Standing Orders or they follow the Model Standing Orders
must necessarily follow certain procedural formalities before any punishment is awarded. This is
laid down in clause 25 of the Model Standing orders. Apart from this since there is no set law as
regards disciplinary proceedings, most procedures have been deduced from various legal
judgments. The procedure can be divided into the following steps:

 Framing and issuing of a chargesheet;

 Enquiry proceedings;
 Findings;
 Decision;
 Service of the Order.

Chargesheet:

Once an employer feels there has been a misconduct and proceeds to carry out disciplinary
action against him, the first thing an employer must do is issue a charge-sheet to the employee. It
is at this point that a domestic enquiry commences. The object of a charge-sheet stems from the
 Page |8

principles of natural justice that a person charged with an offence should know his guilt and
should get an opportunity to explain himself.5 After all the formalities of receiving the charge-
sheet is fulfilled the next step is the enquiry proceeding.

Enquiry Proceeding:

Domestic enquiries do not apply in a situation where the employee admits the charges leveled
against him. Domestic enquiry proceedings are quasi-judicial in nature. This means they are not
totally judicial, and it describes only a duty cast on the executive body or authority to conform to
norms of judicial procedure in performing some act in exercise of its executive powers.6In such
proceedings, the law requires that domestic tribunals should observe rules of natural justice if
they do so; their decision is not liable to be impeached on the ground that the procedure followed
was not in accordance with that which obtains in a court of law.

In the first step, the explanation given by the workman must be considered. If this explanation is
unsatisfactory, a notice giving the details of the upcoming enquiry along with the name of the
presiding officer will be served on the worker.

The employee has a right to be represented by his co-worker during the proceedings, and on the
discretion of the employer may also be represented by the union representative.7

Following this there will be examination and cross – examination of prosecution and defence
witnesses and the evidence deduced from this shall be recorded. The examination of witnesses is
done in a rather technical manner, whereby witnesses are to be examined one by one as in a court
of law, and they should not be allowed to overhear the evidence given by the previous witness.
The signature of the witness should be obtained at the conclusion of evidence or incase the
evidence is being interpreted to the employee, the signature of such interpreter. At the end, the
enquiry officer/presiding officer should sign the evidence of subsequent witnesses.

The enquiry should be conducted with speed and efficiency. As far as possible, the enquiry
should be concluded in one sitting. However, if the proceedings protact it may be adjourned to

5
Bata Shoe Co. Ltd v. Ganguly, (1961) 1 LLJ 303.
6
G.Nageshwar Rao v. A.P. State Road Transport Corporation, AIR 1959 SC 308.
7
N.Kalindi v. Telco, AIR 1960 SC 914.
 Page |9

the next convenient date. In any case, the enquiry should not be postponed for a long period and
if it does so then suitable endorsements must be given with reasons for such delay. However,
keeping in mind the purpose of such enquiries, on should avoid delay as it may effect the
income of the workman seriously and may hamper the proper working of the establishment as
the management will be involved in such proceedings.

Findings:

On completion of the enquiry, it is the duty of the enquiry officer to submit a report containing
his findings and the reasons therewith to the authorized authority to take disciplinary action.
Findings without basis or perverse findings should not be recorded. The findings should be
signed by the enquiry officer. It must be noted that the enquiry officer should not recommend
any punishment or make any other recommendation in his findings.[21]

Decision:

The higher management such as works manager, general manager or director shall consider the
findings and if the workman seems guilty to them, they shall award appropriate punishment in
accordance with the standing orders. No punishment can be given on any grounds not stated in a
charge-sheet. This again follows from the basic principles of the criminal procedure laid down in
law.

In awarding punishment, the fundamental principle is that punishment should be in proportion

with the nature and gravity of the punishment. However, where the standing orders in the
establishment provide a particular type of punishment for a specific act of misconduct, the same
shall be strictly followed.

Service of order:

Any order of punishment is required to be sent expeditiously to the employee in writing which
then completes the proceedings of the enquiry. The letter should make a reference to the charge-
sheet, the enquiry held, the findings of the enquiry officer, the decision and the date from which
the punishment is to be effective. These procedural aspects will vary in a case where approval of
 P a g e | 10

a conciliation officer, court or tribunal is necessary for effecting the punishment, as laid down in
S.33 of the Industrial Disputes Act.

REPRESENTATION BEFORE THE TRIBUNAL

Previously we have seen the procedural aspects of a domestic enquiry. An enquiry is mostly
carried out on the basis of the rules laid down in the standing orders. If there are no rules then the
principles of natural justice should be followed and. In any case the enquiry officer should
always keep in mind that the proceeding should be carried out properly without any arbitrariness
and the proceeding being between two unequal parties there should fair opportunity for both
parties.

It is in the light of this that the question of representation arises. Can a worker demand a
representation by a lawyer as a matter of right?

The right to be represented through an advocate or an agent can be restricted or controlled by

statutes, rules, regulations or standing orders.8Further it has often been stated that if Orders did
not provide such representation, that would not in any way vitiate the proceedings.9

Even the Supreme Court on a number of occasions have persisted with the view that
representation is not a matter of right to the employee. In the case of N.Kalindi v. Telco,10 the
Supreme Court said that one must not forget that firstly these domestic enquiries are not
enquiries in the court of law, and in such enquiries fairly simple questions of fact as to whether
certain acts of misconduct were committed by a workman or not fall to be considered. Further
straight forward questioning which a person of fair intelligence and knowledge of conditions
prevailing in the Industry will be able to do and will ordinarily help to elicit the truth. The court
also pointed out here that it may happen that the accused workman will be best suited, and able
to cross-examine the witnesses who have spoken against him and to examine witnesses in his
favour.

8
Crescent Dyes and Chemicals Ltd v. Ram Naresh Tripathi, 1993 (66) FLR 537 (SC).
9
Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd ed (Allahabad; Law Publishing House, 1997)
at 142.
10
AIR 1960 SC 914. See also, Cipla Ltd v. Ripu Daman Bhanot (1999) 4 SCC 188.
 P a g e | 11

This point of view was further reiterated by the Court in Brooke Bond India
Ltd. v. Subbaraman, 11 in this the employer proceeded to hold an enquiry against two of its
workmen, one of whom demanded to be represented at the enquiry by his counsel and the other
by an outsider of his choice. The enquiry officer refused them such permission, but offered them
representation by a member of the union. Both workmen refused and withdrew from the enquiry,
after which the enquiry was carried out ex-parte and the management decided to dismiss the
workers. On appeal to the Supreme Court, it was held that the enquiry officer had done
everything which he was required to do under the law and the enquiry carried out by the manager
was regular and there was need of further interference.

Where services of an advocate cannot be dispensed with:

However there are certain circumstances which warrants the appearance of an advocate and in
fact some courts have said, that in such circumstances if the opportunity is not given to the
worker, this would amount to unfair labour practices and a violation of natural justice. The
circumstances are as follows:

Where presenting officer is a lawyer:

In the case of CL Subramanyan v. Collector of Customs, Cochin,12 a trained prosecutor of the

status of a high police official was appointed as presentation officer and the request of a
delinquent to engage a lawyer of his choice to represent and defend him was rejected. It must be
kept in mind that the officer was not only a legal practitioner but a trained public prosecutor.
Further in this case the Government service rules gave the right to the government servant to be
represented by a lawyer. Thus here the denial of the help of a lawyer vitiated the enquiry.

The basic point here is that, the enquiry/presiding officer is a person chosen by the management,
in light of this there already exists a fear that the enquiry officer might be bias towards the
management who appointed him. In this scenario, if the officer is also a highly qualified legal
personnel, he may proceed with the same technicality as that of a court of law and this may make
it difficult for the workman to follow the proceedings and to put up a sound defence.

11
1961 (II) LLJ 417 (SC). See generally, Dunlop Rubber Co. (I) Ltd v. Workmen, AIR 1965 SC 1392.
12
AIR 1975 SC 951.
 P a g e | 12

When employer is represented by legally trained prosecuter:

Wherein an enquiry before the domestic tribunal, the delinquent employee is pitted against a
legally trained mind refusal to grant him permission to appear through an advocate would
amount to denial of a reasonable request and violation of essential principles of natural justice.
This was reiterated by the Court in The Board of Trustees of the Port of Bombay v. Kumar R.
Nadkarni,13 where it said that

“ apart from the provisions of laws, it is one of the basic principles of natural justice that the
enquiry should be fair and impartial. Even if there is no provision in the Standing Orders or in
law, wherein an enquiry before the domestic tribunal, the delinquent employee is pitted against a
legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to
grant this request would amount to denial of a reasonable request to defend himself and the
essential principles of natural justice would be violated.”

Following from the above decision, where the employer nominates his legal officer and adviser
as a presenting-cum-prosecuting officers and the delinquent worker is put up against such legally
trained personnel, it is essential to allow the delinquent employee to be represented by a legal
practitioner. Further if the rules put no such restrictions then it would be in the best interest of
justice to allow representation.14

When provisions made by the service rules:

Where the service rules confer discretion in the enquiry officer or the employer to permit the
employee to be represented by a lawyer, it is justifiable and could be then examined by the court
if the employee did not get the opportunity to exercise the discretion.15 One case to make this
situation clear is where the employer nominated a police inspector of the Anti-corruption
Department, who is specially trained in conducting prosecution, to conduct the enquiry and the

13
(1983) 1 LLJ 1.
14
Id.
15
Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd ed (Allahabad; Law Publishing House,
1997) at 143.
 P a g e | 13

right of representation by a lawyer was denied to the employee, it was held it violated the
principles of natural justice.16

In case of a government servant, the disciplinary authority decides whether it should sanction the
right to allow the employee to engage a lawyer, on the basis of the facts and circumstances.

Presentation Officer having adequate legal knowledge:

The presentation officer need not be a lawyer, for the delinquent to insist on having an advocate
represent him. Its enough if the presenting officer has a sufficient knowledge of law and has been
trained in the techniques of a disciplinary proceedings. For example, where the presenting officer
is a CBI inspector, this situation is enough to warrant the services of a lawyer.17

Other circumstances:

Firstly, when a joint enquiry against two Government servants is being conducted and if the
department has appointed a presenting officer and if the co-delinquent had an officer, to defend
him, fair play and justice demands that the enquiry officer should have enquired from the
delinquent employee whether he would like to engage someone to defend him.

Also where the facts are complicated and the gravity of charges are high and the employee is not
educated or skilled enough to handle such situations then a lawyer maybe engaged to defend
him. In one case because of the gravity of charges being investigated in the domestic enquiry
(fraud and forgery) and if such charges are tried in a criminal court, the accused would have a
right to be represented, the delinquent was allowed to be represented by a lawyer.18

However courts, have given varying decisions in this regard and in the next chapter the
researcher will decide the need of a lawyer in domestic proceedings or whether they are a mere
nuisance to such internal proceedings.

16
T.Muniswami v. State of Mysore, (1963) 3 LLJ 694.
17
Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd ed (Allahabad; Law Publishing House,
1997) at 147.
18
Photographic Co. Ltd v. Saumitra Mohan Kumar, (1984) 1 LLJ 471.
 P a g e | 14

As seen above the general principle of the right of representation to be exercised by the workman
depends upon the discretion of the enquiry officer but such discretion is only to be exercised in
peculiar and pressing situations. As seen above in certain circumstances where it seems that
grave injustice will be done, the enquiry officer may allow the right of representation. However,
this judgment will from case to case as per the circumstances and nuances involved. Besides this
the said right also depends on the standing orders or service rules. If such a right is not
recognized in the standing order, such refusal does not vitiate a proceeding.19 A proceeding is
vitiated when a workman is unable to defend himself, either because he is illiterate20 or because
he is unable to understand the complexities of the case or for other reasons. However, in all such
situations the court does not vitiate proceedings. If it is seen that though representation was not
allowed, yet there was no hint of bias proceedings or arbitrary action, then such will not be set
aside. Thus we see that there is no precedent set in this respect and having a fair idea of the
existing situation it is left to one, to understand the best possible solution to this and therefore in
the next segment, the researcher has aimed at analyzing the existing trend. and whether it is fair
and just.

THE RIGHT OF A FAIR AND JUST TRIAL

A Case against representation:

It is well understood that a domestic enquiry is an internal proceeding and not one in a court of
law. Further very simple questions are asked in these proceedings as the object of this enquiry is
only to see whether certain misconducts were committed by the workman or not. Further in
the Telco case it was argued that the questions are simple enough that a person of fair
intelligence and knowledge of conditions prevailing in the industry would be able to do.21

Further the involvement of lawyers, it is argued will necessarily make the proceedings more
technical and this will detract from the informality of proceedings, thereby, impeding smooth
and expeditious settlement.22 However one cannot blame lawyers for bringing their legal training

19
H.L.Kumar, Misconducts, Chargesheets and Enquiries, 5th ed (New Delhi; Metropolitan, 1992) at 230.
20
Workmen of Madura Co. Ltd v. Labour Court, (1966) 1 LLJ 498.
21
AIR 1960 SC 914. See also, Cipla Ltd v. Ripu Daman Bhanot (1999) 4 SCC 188.
22
O.P. Malhotra, at 1054.
 P a g e | 15

and experience to the aid and benefit of their clients as it is well established that labour disputes
necessarily entails two unequal parties.

It is worth mentioning that even under the provisions of the industrial Disputes Act the
appearance of a legal practitioner is totally prohibited in conciliatory proceedings and restricted
as far as adjudication proceedings go. It must therefore, not be in consonance with the policy to
allow an advocate to participate in purely fact finding proceedings before domestic tribunal and
allowing the proceedings to be influenced by strict rules of evidence.[38] In this respect, it is
further argued that principle of natural justice would be complied with if the delinquent workman
was allowed to be represented by a co-worker of his choice. However such a situation is not a
viable option. The fight should be between equals and a co-worker may possess the same
disabilities as that of the delinquent workman and may not have the sufficient qualifications and
knowledge.

This then brings us to deeper issues of industrial relations and inequality of bargaining power of
the workmen and how the law and the legislature have tried to bridge the gap or at least make
amends.

Natural justice in labour laws:

Rules of natural justice are not embodied rules nor can they be elevated to the position of
fundamental rights. In Kraipak v. Union of India, 23 the Court observed, the aim of rules of
natural justice is to secure justice or to put in negatively to prevent miscarriage of justice. Further
these rules of natural justice can operate only in areas not covered by any law validly made. In
other words they do not supplant the law but supplement.

The point is that if the Courts can read statutory provisions consistently with the principles of
natural justice, then it should do so because it is presumed that the legislatures and the statutory
authorities intend to act in accordance with the principles of natural justice. However, if a
statutory provision, either specifically or by necessary implication excludes the application of

23
AIR 1970 SC 150.
 P a g e | 16

any of the rules of natural justice then the court cannot ignore the mandate of the legislature or
the statutory authorities.24

Thus this case held that quasi-judicial enquiries must be held in good faith, without bias and not
arbitrarily and unreasonably.

Further in one case the court held that though the right to employment is not a fundamental right,
but after employment to a post or office, be it under the state, its instrumentality, juristic person
or private entrepreneur, an employee must be dealt with as per public element and in public
interest assuring him equality under Art.14 of the Constitution and all concomitant rights arising
from it. 25 Thus proving the need of upholding principles of natural justice so that everyone
person can be treated equally.

Thus keeping these ideas in mind, we shall now embark on a discussion of the legality and
importance of a lawyer representing a delinquent workman in enquiry proceedings.

Appearance of advocates: A fair principle

Up to this point we have seen that case law and authors have said that a workman has no right to
be represented by an advocate in domestic enquiries and the opposite view is only an exception
culled out in pressing situations. However with the strengthening of the principles of natural
justice and the agreement of courts that such enquiries are quasi-judicial in nature, therefore one
must necessarily pass judgment in fairness and good faith.

In Nitya Ranjan v. State26, the court held that though legal assistance is generally prohibited in
domestic enquiry, yet in certain circumstances where there is complexity in facts, volumes of
evidence, the educational attainments and experience of the delinquent workman etc. And these
factors show that without legal assistance he may not be able to establish his innocence, then the
rule can be broken and the exception of allowing an advocate be brought in. Infact the court said
that in such circumstances, denial of legal assistance may be equivalent to denial of ‘reasonable
opportunity’ and the entire proceeding can be quashed.

24
L.C.Malhotra, Dismissal, Discharge, Term of Service and Punishment, at 103.
25
Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377
26
AIR 1962 Orissa 78.
 P a g e | 17

Here again see the assertion of principles of natural justice which demands fair trial and
reasonable opportunity to every person. This was further reiterated in another court where the
charges against the delinquent were of falsification of accounts, misappropriation of Government
money, acceptance of illegal gratification etc. there were as many as 93 witnesses examined and
a large number of documents presented. In fact the enquiry went on for three years with three
enquiry officers succeeding one another. In the facts and circumstances of the case it was seen
that the disciplinary authority acted contrary to A.311 (2) of the Constitution in denying the
representation of the petitioner by a lawyer at the enquiry and thus deprived him of the
reasonable opportunity granted to a public servant. Thus the proceedings were vitiated.27

Besides the fairness and humanitarian angle to this, there are other reasons which make the
appearance of an advocate in an enquiry important. Firstly, if an advocate is present at the
enquiry there is more chances that the proceedings will be held properly as the legal practitioner
will see to the efficacy of the proceedings and see whether all the formalities are fulfilled.
Further there is fear that since the presiding officer is selected by the management itself, there
may be bias and unfair practices on its part.

Secondly, if u allow an advocate to present the case of a delinquent workman, this would elevate
the status of the proceedings as it will be looked at with more seriousness and it will be believed
that the appearance of the advocate will make the proceedings more technical and formal to the
extent of fair and just proceedings.

Thirdly, if there is an advocate arguing the case, it is most likely that it would keep the legal
aspects in mind, thus avoiding arbitrary enquiries and even more arbitrary findings. This will
bring faith in the domestic enquiry and a will to solve the issue quickly. This will avoid
congestion of cases at the Labour Court and Industrial Tribunal.

Lastly, once you say that the principles of natural justice must be followed, this necessarily
entails that the proper procedures of law must be complied with leading to the natural conclusion
that the procedures laid down under the Civil Procedure Code is best suited to be followed as far
as procedure goes. Thus, once the CPC is brought in, the procedure and charges become difficult

27
Baidhar Das v. The State and Ors, AIR 1970 Ori 320
 P a g e | 18

for the worker to understand and therefore, the representation of such workman through an
advocate would be advisable and fair.

CHANGING FACE OF THE LAW:

However, in contemporary times perceptions and views have changed to support the
representation of a workman by an advocate. It has often been argued that an Enquiry Officer
performs quasi- judicial functions on account of which principles of natural justice are
applicable, then they are applicable not because they are provided in the standing orders or
service rules, but because they are implicit in the discharge of quasi-judicial functions. Thus
often now even if standing orders provide something contrary, nevertheless, principles of natural
justice would apply.

Under the old concept of free economic system the employer used to enjoy the right to ‘hire and
fire’ his workmen. Though the right to ‘hire’ still belongs to the employer, the right of ‘fire’ has
in recent times been circumscribed by several limitations.[52] Today, whenever a question of
interpreting a labour statute comes up, the court are reluctant to give an interpretation which
would be prejudicial to the rights or welfare of labour

Recently the Calcutta High Court in India Photographic Co. Ltd v. Saumitra Mohan
Kumar, 28 held that though the court should discourage involvement of legal practitioner in
simple domestic enquiries like disciplinary enquiries for avoiding delay, yet the Court cannot
ignore the necessity of such representation in exceptional cases where refusal of such
representation would defeat the purpose of the enquiry itself. The Court did not lay down any
specific rules in any case but said that the issue should be left for such consideration as the
exigencies of facts demand in individual cases.

CONCLUSION

The above chapter reinforces the fact that a person who is entitled to appear in person to defend
himself before a domestic tribunal is also entitled, in the absence of an express provision to be

28
1984 Lab IC 42.
 P a g e | 19

represented by a lawyer. It would be contrary to principles of natural justice to allow one side to
be represented by a lawyer or that the presiding officer maybe well versed in the legal practice.
In considering whether natural justice implies a right to representation, one must recall that
natural justice demands only minimum safeguards of fair adjudication, and not ideal standards,
further as discussed above these principles only supplement and not overrule any existing law in
practice. However, a person threatened with social or financial ruin by disciplinary proceedings
in a purely domestic enquiry may be gravely prejudiced if he is denied legal representation.

Development of case law on implied rights of legal representation in non-statutory areas should,
therefore, be guided by a realistic appraisal of the interests of the person claiming it, as well as of
the interests of the organization to which he belongs.

In fact in the recent past we have seen the situation is changing and the right to legal
representation is slowly finding its way into such disciplinary proceedings as it now seen as one
of the tools of a fair and just enquiry. This stems from the fact there is more awareness today as
to one’s rights and liabilities and issues of right to employment and livelihood as a corollary to
human rights is no more a talk of the privileged, but is now something embedded in every human
being.

Also after liberalization courts have started showing concern towards the worker population and
are now reluctant to pass judgment which may harm their dignity and position in society.

Therefore in the light of all this, the right of representation of workman by a legal practitioner is
only a small step in ensuring justice and fairness and thus courts should keep this is mind when
making judicial pronouncements.
 P a g e | 20

BIBLIOGRAPHY

Articles:

1. D.R.K. Rao, “Domestic Enquiry Vs. Departmental Inquiry”, Labour Law Journal, 2005-I
LLJ at 49.
2. E.M.Rao, Industrial jurisprudence (New Delhi; Lexis Nexis, 2004)
3. P.Naresh Kumar, “ Law on representation through legal practitioners before Labour
Courts and Tribunals,” Labour Law Journal (Articles), 2003- 1 LLJ at 10-17.
4. Shantimal Jain, “Representation before Domestic Tribunal,” Labour and Industrial
Cases, 1987 Lab.I.C. Jour 4 (1)
5. Vijai Shanker, “Disciplinary Action & Natural Justice, Labour Law Journal, 1971- 1 LLJ
at (vi- xvii).

Books:

1. P.L.Malik, Industrial Law,16th ed (Lucknow; Eastern Book Co., 1992).

2. A.S.Ramachandra Rao, Law relating to Departmental Enquiries for Government
Servants, 2nd ed (Delhi; Universal Law Publishing Co. Pvt. Ltd,2003).
3. L.C.Malhotra, Dismissal, Discharge, Term of Service and Punishment, at 103.
4. O.p.Malhotra, at 1054.
5. Markanday Katju, Domestic Enquiry (Bombay; N.M.Tripathi Pvt Ltd, 1984).
6. H.L.Kumar, Misconducts, Chargesheets and Enquiries, 5th ed (New Delhi; Metropolitan,
1992).
7. Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd ed (Allahabad;
Law Publishing House, 1997).