BHARAT FRITZ WERNER PVT. LTD v. PRESIDING OFFICER. INDUSTRIAL TRIBUNAL, BANGALORE
1988-09-23
M.RAMAKRISHNA RAO, P.P.BOPANNA
body1988
DigiLaw.ai
BOPANNA, J. ( 1 ) THIS appeal raises a short but interesting question on the proper construction of Standing Orders Nos. 27. 1 and 27 2 framed by the appellant/management. Those Standing Orders read as follows:"27 1 Every order imposing a penalty shall be in writing and before its imposition the employee concerned shall be informed in writing, of the alleged misconduct and given full opportunity of explaining the charges levelled against him. The principles of natural justice shall be observed while conducting the enquiry and the worker concerned will on request be supplied with a copy of the statement recorded at the enquiry. 27. 2 A Workman is liable to be suspended pending enquiry against him for such time as may be necessary for the enquiry or till the permission for dismissal is obtained under I. D. Act, 1947, if required An order of suspension shall be in writing and may take effect immediately on delivering it to the workman. During the period of suspension, an employee shall not enter the premises except with the permission of the Management. " ( 2 ) IT transpires that the 2nd respondent/workman was charge-sheeted for the alleged misconduct of assaulting one of the senior officers of the appellant/ management and in respect of the said mis conduct an enquiry was conducted by the appellant. The Enquiry Officer admittedly was the partner of the appellant's legal consultants, M/s Gopalaiahand company which was engaged on a retainer basis by the company. Before the commencement of the enquiry the workman requested permission to engage a co-worker to defend him in the enquiry proceedings. That request was granted by the appellant But, before the commencement of the enquiry the co-worker manoharan who had been permitted by the appellant to defend the workman, was also charge-sheeted on certain other acts of mis-conduct and he was also placed under suspension. On account of his suspension from duty the delinquent workman was informed by the appellant by letter dated 18-3-1978 that, since manoharan was charge-sheeted in another case and had been placed under suspension pending enquiry against him, the delinquent workman would not be permitted to have his assistance in the domestic enquiry and he could have the assistance of any other co-worker of his choice.
( 3 ) LEARNED counsel for the appellant submitted that the 2nd respondent did not make an issue of this letter as is evident from the fact that he appeared before the Enquiry Officer and conducted the proceedings himself without seeking the assistance from any other co-worker and without insisting on the presence of manoharan who had been earlier permitted by the appellant to assist him. On this premise it was submitted by Mr. Kasturi, learned counsel for the appellant, that the principles of natural justice were fully complied with by the appellant and, therefore, the learned Judge was wrong in the construction put on Standing Order 27. What the learned Judge observed in para 11 of his order is "there is no rule that a workman who has been suspended cannot enter the factory. All the Standing order 27 (2) states is that he cannot enter the factory without permission which means that he can enter the factory with permission. When permission had been accorded to the petitioner to engage the services of Manoheran to defend himself, the said permission itself amounted to permission to Manoharan to enter the premises of the factory only for the limited purpose of defending the second respondent if the enquiry was held within the factory. Further, at the time of hearing it was disclosed and the inquiry was held at the 'time Office' which is just at the gate of the factory. It is in these circumstances the reason given for withdrawing the permission earlier granted to the second respondent to engage the services of Manoharan has been found to be unreasonable by the Tribunal. In view of this, the Tribunal has also recorded a finding that the principles of natural justice stood violated by denial of a reasonable opportunity to the second respondent to defend himself. " ( 4 ) IN our view, though Standing order 27 may not lend itself to such a construction by the Tribunal that by itself would not be a ground to interfere with the impugned orders. It is well settled that, if a reasonable construction is possible on the plain terms of the Standing Order, this Court under Article 226 should not interfere with such a construction even though a different view could be taken. (see 1963 (1) LLJ, 684- agnani (W. M. J v. Badri Das and others ).
It is well settled that, if a reasonable construction is possible on the plain terms of the Standing Order, this Court under Article 226 should not interfere with such a construction even though a different view could be taken. (see 1963 (1) LLJ, 684- agnani (W. M. J v. Badri Das and others ). ( 5 ) EVEN otherwise, we are of the view that Standing Order 27 is not applicable to the facts of this case. It applies to a workman who had been charge- sheeted for the alleged misconduct and placed under suspension. Such a workman is not permitted to enter the factory premises without the permission of the management. But, that Standing Order could not be extended to a case of a co- woiker who had been permitted by the management earlier to defend another workman and who had been subsequently suspended on the ground that he himself was involved in certain acts of misconduct. In our view, Standing Order 27 by itself is not a prohibition for a co-worker to assist another delinquent workman in the domestic enquiry instituted by the management when such permission has been granted earlier Standing Order 27 should be read in the context in which it was framed ( 6 ) MR Kasturi, learned counsel for the Management submitted that the 2nd part of the Standing Order refers to co- workers. We do not think that such an interpretation is possible, if the Standing order is read as a whole. Standing order 27. 2 applies to a workman who is sought to be punished for the alleged misconduct committed by him and that is covered by Standing Order 27. 1. 27. 2 refers to the same workman who is liable to be suspended pending enquiry for any act of misconduct committed by him which is liable to be punished under Section 27. 1. Therefore, the Management having wrongly refused permission to the workman for taking the assistance of a co-worker Manoharan on the ground that he was placed under suspension, the management cannot be permitted to plead that the workman should have sought for an opportunity to defend himself with the assistance of any other co-worker and he having not asked for such a permission the Management was justified in proceeding with the enquiry.
( 7 ) THAT apart, in a matter like this where the Management had the benefit of a legally Trained person as an enquiry officer and one Security Officer Guru- padaiah and subsequently its Sales Manager as the Presenting officers, the delinquent workman was pitted against those officers in the domestic enquiry. It has come on record that the workman due to unavoidable circumstances was not able to attend the enquiry in the forenoon and he had orally requested the Enquiry Officer to adjourn the enquiry by a short time. The Enquiry Officer does not deny the receipt of this oral communication but all the same he proceeded with the examination of 3 important Management witnesses in the absence of the workman and later on they were tendered for cross- examination by the workman. The enquiry officer has admitted that he proceeded with examination of these 3 witnesses because the Presenting Officer wanted him to do so. We think that this attitude of the Enquiry Officer appears to be not very correct and impartial since he having received the telephonic call from the workman pleading his inability to attend the enquiry, the appellant would not have been prejudiced if he had adjourned the enquiry till the workman made himself available for the same. How the workman could have cross-examined those witnesses without any assistance when the witnesses were not examined in his presence is the next question for consideration. On record it is clear that he did not have any assistance from a co- worker to defend him and, therefore, on this ground also it could be held that the enquiry is violative of the principles of natural justice. ( 8 ) IN the circumstances, there is no good ground to interfere with the impugned orders and this appeal is accordingly dismissed. However, we make it clear that the view we have taken is on the basis of the Standing Order in this case and it does not apply to other cases where the Standing Orders provide otherwise. Parties to bear their own costs. Writ appeals dismissed. --- *** --- .