BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. DILIPKUMAR RAGHAVENDRANATH NADKARNI AND OTHERS (2)

Citation: [1983] 1 S.C.R. 828

Court: Supreme Court of India

Bench: D.A. DESAI, R.B. MISRA

Case summary

The first respondent challenged the legality and validity of the order of dismissal in Misc. At the end of the enquiry, the first respondent was dismissed from service.

Judgment text

828 ' ,. BOARD OF TRYSTEES OF THE PORT OF BOMBAY v. DILIPKUMAR RAGHAVENDRANATH NADKARNI 8 AND OTHERS November 17, 1982 [D. A. DBSAI, AND R. B. MISRA, JJ. J Departmental Proceedings-Domestic enquiry-Management appointed legally trained officers as prosec~ting officers-Employee's request to be represented by a legalpractilioner rejected-whether violates principles ofnatural}ustiCe. . . Natural justice-Employee denied asJistance of legal practitioner before domestic enquiry while management engaged legally trained men as prosecuting officers-Whether viola/es principles ofnatural justice. The time honoured and traditional approach in regard to a domestic enquiry in industrial disputes is that. it is a managerial funCtion which would be best left to the management without the interven! ion of persons belonging to the legal proression. This approach was based on the ground that a domestic· enQuiry.

should not be unduly inhibited by strict rules Of evidence and procedural laws and t\lat in the informal atmosphere in which the enquiry is cOnducted the delinquent would be able to defend himself. Whatever justification there might have been in the past for holfting this view, the positi RllMll COURT REPORTS · [1983] I li. C. R. review the earlier decision so as to enable the first respondent to appear through a legal practitioner. At the end of the enquiry, the first respondent was dismissed from service. The first respondent challenged the legality and validity of the order of dismissal in Misc. Petition No. 705 of 1979 in the High Court of Judicature at Bombay. A learned Single Judge. of the High () Court by his judgment and order dated September 13, 1982 quashed and set aside the order of dismissal, inter alia, holding that while appointing two Presenting Officers both legally trained,'.

the Chairman of the appellant failed to afford a reasonable opportunity to the first respondent to defend himself by refusing him permission to appear through a legal practitioner and the principles of natural justice are violated. An appeal being 0. 0. C. J 594 of l982 by the appellant ----t was dismissed in limine by a Division Bench of that High Court. Hence this appeal by Special leave.. We were not inclined to grant ! eave to appeal in this case, but as we want to clear a legal misconception we thought fit to hear. ie~rned counsel on either side and to dispose of this appeal by . a. short judgment. • The narrow question which we propose to examine in this appeal is. whether where in a disciplinary enquiry by a domestic tribunal, the employer complaining misconduct appoints legally trained person as Presenting-cum-Prosecuting Officer the denial or refusal· of a request by the delinquent employee seeking permission .

to engage a legal practitioner to defend him at the enquiry, would constitute such denial of reasonable opportunity to defend one self and thus violate one of the essential principles of natural justice which would vitiate the enquiry ? The time honoured and traditional approach is that a dom~~tic enqu'iry is a. managerial function and that it is best left to management without the intervention of persons belonging to legal profes· sion. This approach was grounded on the '{iew that a domestic . tribunal holding an enquiry without being unduly influenced by strict rules of evidence and the procedural jagger-naught should hear the •. delinquent employee in person and in . such an informal enquiry, the delinquent officer would be able to defend himself. The essential assumption underlying this belief is questionable but it held the field for some time and there. are decisions of this Court in Brooke Bond OOARD OF TRUs1EES v. DILIPKUMAR (Desai, 1. ). 833 India (Pvt. ) Ltd. v.

Subba Raman (S) and A11r. ( ) and DUnlop Rubber Co. v. , Workmen('), in which it bas been held· that in a disciplinary enquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and therefore as a corollary it cannot be said that in such an ·enquiry against . a workman natural justice demands that he ought to be represented by a representative of his Union much less a member of the legal profession_. While buttressing this approach, an observation was made that unless rules · prescribed for holding the ·enquiry do not make an enabling provision that the workman charged with misconduct is entitled to be repre· · sented by a legal practitioner, the Enquiry Officer and/or the ·employer would be perfectly justified in rejecting such a request as it. would vitiate the informal atmosphere of a 'domestic tribunal. A strikingly different' view was sounded . by Lord Denning in Pet v.

3 Greyhound· Racing Associatzon Ltd;( ), wlierein the concerned authority directed an enquiry to be held into the withdrawal of traiqer's dog from a ra pportunity to appear through legal practitioner and failure on their part had vitiated the enquiry. For these reasons, this appeal fails and is dismissed with costs quantified at Rs. 2,000. -----1 · . Now, we may note the consequence of this decision. As tl)e decision reached by the domestic tribunal is held to be vitiated on the groun'd that the enquiry was he. Id in violation of the principles of natural justice on the ground that the first respondent was n~t afforded a reasonable opportunity to defend himself, the High Court was justified in quashing the order of dismissal. The sequel to our order ' would certainly mean that it would be open to the appellant to continue the enquiry. But it must be. expedited.

We therefore direct that while continuing the ·enquiry, it will be open to the appellant to treat the examination-in-chief of each witness already recorded during the enquiry as proper but all witnesses examined at the enquiry. will have to be offered to the first respondent for cross- • examination and the respondent . would be entitled to appear through a lawyer cif his choice and even examine witnesses and participate _in the enquiry. The earlier cross-examination may also be retained as part of the record. Both sides· would be entitled . to adduce fresh evidence both document and oral, if considered necessary. Tb~ first· respondent would be entitled to call upon the appellant to produce any document which ·he desires for effective adjudication subject to the decision of the-Enquiry Oflker about its relevance and necessity for efficient and just disposal of the enquiry.

As the order of dismissal · is being set aside and the enquiry is being continued, the order suspending the first respondent! from service pending enquiry would be revived an. d the appellant should pay subsistance allowance throughout this period and till the end of the, enquiry which would be continued hereafter after taking credit of whatever payment that had been made since the suspension order and till ioday. The payment herein directed should be made within a month from today. - • P. B. R. Appeal dismissed. \ •