1999(1) ALL MR 421
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

N.J. PANDYA, J.

Life Insurance Corporation Of India, Vs. Shri. Subhash N. Ghodke & Ors.

Writ Petition No. 1178 of 1998

11th January, 1999

Petitioner Counsel: Mr. R. A. DADA, Sr, Advocate with Ms. SNEHAL PARANJAPE i/b M/s. Little & Co.
Respondent Counsel: Mr. S.M. DHARAP

Constitution of India, Art. 226 - Disciplinary enquiry - Charge of temporary embezzlement of premium amount by LIC employee - Employee B. Com and MBA capable of representing his own case - Offering himself as witness and cross examining witnesses of department - Held enquiry which was otherwise fairly conducted could not be set aside simply because employee was denied representation by a person of his choice.

(1993) 2 SCC 115, (1961) 2 LLJ 417, (1976) 4 SC 765, 1996(3) SCALE 202 Rel.on. (Para 19, 20)

Cases Cited:
(1993)2 SCC 115 [Para 15]
AIR 1960 SC 914 [Para 15]
(1961)2 LLJ 417 [Para 15]
(1976)4 SCC 765 [Para 17]
1996(3) SCALE 202 [Para 18]


JUDGMENT

JUDGMENT :- The Petition is filed by the Life Insurance Corporation of India against the Award given by the central Government Industrial Tribunal No.II in Reference No. CGIT - 2/26 of 1997, a copy of which has been produced at Exhibit R, Page 155. The Award is dated 6th April, 1998.

2. Admitted position is that the Respondent No.1 ( for short 'an Employee') was working with the petitioner - Life Insurance Corporation of India (hereinafter would be referred to as 'the Employer'). The respondent - employee, who was facing the charge to the effect that the premium amount which has been misappropriated, has accounted the same subsequently. There were two such incidents. For our purpose, they can be referred to as the case of temporary embezzlement.

3. I am not entering into the details of charges and evidence led in support thereof because all through the grievance of the employee has been that he was not permitted to be represented by a defence representative of his choice and, therefore, there is violation of principles of natural justice.

4. The Inquiry Officer was other than the Disciplinary Authority. The Inquiry Officer clearly brought to the notice of the employee that one Mr. Patwardhan, working at Pune Division of the Employer, could not be permitted to represent the employee and instead any one from the Aurangabad Division, where the employee was working, may be chosen by him to represent him. The reason for the Employer to take this stand is that there are different divisions of the Employers, control vests in the respective judicial officers of the employer and allowing an employee of one division to represent the delinquent working in another division would involve lot many obligations including the grant of leave, payment for travelling, etc.

5. Without further entering into this aspect as to why there is prohibition on an employee of a division not being permitted to defend an employee of another division in a departmental inquiry, I may proceed on the basis that the refusal was on the ground that Mr. Patwardhan being from Pune division while an inquiry was being held in Aurangabad division.

6. Needless to say the charges have been proved and Disciplinary Authority has awarded the punishment of dismissal. The matter was carried in appeal with no success. The Tribunal, when the reference was made to it on the basis of not allowing an employee to have an assistance of the same Mr. Patwardhan, has come to the conclusion that there is a violation of principles of natural justice and that whole inquiry is vitiated. These findings are recorded in paragraph 17 at page 165 preceded by some observation in that regard in paragraphs 11 and 12 respectively at pages 162 and 163, as also at page 164 in paragraph 14, and paragraph 15 at page 165.

7. The Tribunal has gone to the extent of holding that if Mr. Patwardhan could not be made available and employee could not be permitted to avail of his services, the Inquiry Officer or Disciplinary Authority should have permitted an employee to have an assistance of an Advocate. It may be mentioned here that this was never sought by the employee before any of the Authorities. It is, therefore, difficult to understand as to how the Learned Tribunal could have come to this conclusion.

8. Apart from that what the Learned Tribunal is laying down in his proposition is to the effect that once an employee, who is facing disciplinary proceeding, has chosen a person to be his representative, denial of that choice would result into a violation of principles of natural justice.

9. Clearly this could not be the proposition of law. Many judicial pronouncements have eventually come by the year 1996 to the effect that those principles are broken in two parts; one substantial denial like conducting an inquiry without notice, behind back of an employee, not affording any particulars, etc., the other one being on milder footing viz. procedural part which may or may not amount to a violation of principle of natural justice depending upon the facts and circumstances of each of the cases.

10. In the instant case, there being two incidents of the alleged misappropriation or temporary embezzlement, and the employee being B.Com. and Master of Business Administration and was handling cash as per the case of the department, could easily represent his own case. Nodoubt, he could have asked for an assistance and as per the norms, practice and rules, if any, he could have been permitted to have an assistance. As could be found in the instant case from the inquiry report Page 40 onwards and an Award from pages 70 to 82, the employee was given such permission but he was asked to select somebody from Aurangabad division. Nodoubt, this is a case from Aurangabad Division wherefrom he could have chosen an employee to represent him. This is an assertion made by him and it is an oral say on his part alone.

11. Apart from that, on going through the record, it is found that not only the employee has offered himself as witness but has also cross examined the witnesses that were produced by the department. At the end of this exercise, the finding of the delinquent being guilty has been recorded.

12. The record reveals that initially affidavits were filed instead of the witnesses having examined orally so far as the examination -in -chief is concerned. The cross examination as and when asked was given of the witnesses. In fact, as could be seen from the cross examination of the employee himself, at page 136 Exhibit-o, he claims that he belongs to an Aurangabad Division Insurance Workers' Organisation and 75% of the employees of the division are members of his organisation. If that be so, it is difficult to understand as to how could he not find a single employee from that division to defend him. Nodoubt, there is a hint in the said cross-examination that none of the office bearers of the organisation to which the employee belongs has legal qualification

13. Looking to the nature of charges as a whole, I do not think that any legal qualification is required for defending the employee. If he has got as many as 75% of the employees as members of his organisation of which he was an office bearer for some time, merely on his say that none from Aurangabad Division was ready to defend him, in my opinion, it cannot be said that because the assistance of Mr. Patwardhan from Pune Division has been denied, the principles of natural justice are violated.

14. The aspect of allowing the Advocate to represent an employee, as held by the Learned Tribunal, has been considered earlier. The net result is, therefore, that the order of the Learned Tribunal cannot be sustained.

15. So far as judicial pronouncements are concerned, the case of Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi reported in (1993)2 Supreme Court Cases Page 115, has been relied upon. After referring to Indian / English Decision as in Para 10 at Page 123, the Apex Court has summarised the case and, thereafter, has discussed the right to be heard. The question before the Apex Court was, does then the right to be heard include the right to be represented through counsel or agent but not necessarily an agent of the choice of the delinquent. In this regard, earlier decisions in Kalindi (N) v. Tata Locomotive & Engineering Co. Ltd. reported AIR 1960 SC Page 914; and Brook Bond India (P) Ltd. v. Subba Raman (S), reported in (1961)2 LLJ 417 , have been cited and discussed.

16. The result of the above judicial pronouncement including that are cited is that depending upon the departmental rules, may be even standing orders, question of representing the case of a delinquent, has to be decided. In the instant case, the practice has been not to allow an employee of a division to represent the case of a delinquent in another division. The aforesaid judicial pronouncement, therefore, will support the stand taken by the management of the Employer.

17. (1976)4 Supreme Court 765 is a matter of H.C. Sarin v. Union of India and Ors., where the provision of Indian Railway Establishment Code, Vol.I Rule 1730 was being considered as one of the submissions. It is held that for providing services of a professional lawyer, it is not obligatory under the Rules. Then it is clearly held that in not making available to the delinquent the services of a particular officer of the department cannot be held to have prejudiced the cause of a delinquent. Nodoubt, in that case, an inquiry has been held in London and Inquiry Officer was Mr.Bhalla, who was working in India. Factually this may be the position but the provision is quite clear.

18. Lastly, we have the case of State Bank of Patiala v. S.K. Sharma, reported in 1996(3) SCALE 202, where the aspect of prejudice has been considered and the Court or the Tribunal has been clearly directed to make a distinction between a total violation of natural justice and violation of a facet of the said Rule. In other words, a distinction has to be made between no opportunity and no adequate opportunity i.e. between "no notice"/ "no hearing " and "no fair hearing".

19. In the instant case, it is not possible even to hold that there is no fair hearing. Much less could it be said that the principles of natural justice are violated in any manner.

20. The sweeping manner, in which the Tribunal has addressed the question before it and went to the extent of holding that on account of the said violation the findings of the Inquiry Officer are perverse, obviously,cannot be sustained. The net result is,therefore, that the petition succeeds. The order of the Tribunal is set aside and the one confirmed by the appellate authority is restored. Rule is made absolute with no order as to costs.

Petition allowed.