JUDGMENT
R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the rule is made returnable forthwith.
2. The petitioner challenges the order dated 21-3-2003, passed by the Labour Court, Mumbai, in Reference (IDA) No. 253 of 1989 holding that the domestic inquiry was not fair and proper.
3. Placing reliance in the decisions in the matter of State Bank of Patiala and Ors. v. S.K. Sharma, reported in 1996 SCC (L&S) 717, State of Tamil Nadu v. Thiru K.V. Perumal and Ors., reported in 1996 II CLR 519, Hawaldar Singh v. Taigrania Metal & Steel Industries and Ors., reported in 2000 II CLR 452, Ravindra Umesh Gokran and Ors. v. Guest Keen Williams Limited and Ors., reported in 1992 II LLJ 847, Godrej & Boyce Mfg. Co. Ltd. v. Ashokan K.K. and Anr., reported in 1999 Vol. I CLR 2 and K.M. Sarpabhushana Swamy v. Educational Appellate Tribunal, Bellary and Ors., reported in 1997 I CLR 93, the learned Advocate for the petitioner, drawing attention to the Clause 25(4) of the Model Standing Orders applicable to the parties, has submitted that there was substantial compliance of the procedure prescribed in relation to the inquiry under the said Standing Orders and therefore the Labour Court erred in holding that the inquiry was not fair and proper. He has further submitted that there was no clear finding arrived at by the Labour Court before holding the inquiry to be not fair and proper, that there was either no opportunity given to the workmen to defend the charges or that there was no substantial compliance of the provisions regarding the procedure prescribed for conducting the inquiry. It was further sought to be contended that the workmen had never objected to the proceedings, in the manner they were conducted, nor had raised objection regarding the recording of the inquiry in English while the same was being conducted in Marathi and all the papers relating to the inquiry were duly signed by the workmen which disclose waiver of right of the workmen to opt for a particular language in which the inquiry could have been conducted at their choice. Besides, the proceedings clearly disclose that before proceeding to record in English, while it was being conducted in Marathi, a clear intimation in that regard was given to the workmen by the inquiry officer and yet the workmen had never objected to the same. All these factors, disclose substantial compliance of the provisions of the Clause 25(4) of the Model Standing Orders and that therefore the finding arrived at by the Labour Court is contrary to the materials on record and therefore needs to be set aside. The learned Advocate for the respondent, on the other hand, has submitted that there is no case made out for interference as the finding is clearly borne out from the records.
4. Undisputedly, the parties are governed by the Model Standing Orders and the Clause 25(4) thereof provides that a workman against whom an inquiry is proposed to be held shall be given a chargesheet clearly setting out the circumstances appearing against him and requiring his explanation and he should be permitted to appear himself for defending him or should be permitted to be defended by a workman working in the same department as himself or by any office-bearer of a trade union of which he is a member and except for reasons to be recorded in writing by the officer holding the inquiry, the workman should be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman’s plea should also be recorded. The said clause further provides that:-
“All the proceedings of the inquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman concerned and the person defending him. ”
5. Apparently, it is referring to the above quoted clause that the Labour Court while holding the inquiry to be not fair and proper has held that “recording the enquiry in English without asking for the choice of the workman, conducting the enquiry on 9th May, 1985 in the absence of the representative of the workman, asking the workman to make her statement in the absence of her representative, asking her to cross-examine the witness, are the things sufficient to create a doubt about not following the principles of natural justice in the enquiry proceedings”. In other words, the Labour Court has held that failure on the part of the inquiry officer to give opportunity to the workman to make the choice regarding the language in which the inquiry was to be conducted, further asking the workman to cross-examine the witness in the absence of her representative as well as asking her to make her statement in the absence of her representative, all these facts disclose that the inquiry was not conducted in fair and proper manner.
6. In Ravindra Umesh Gokran and Ors. v. Guest Keen Williams Limited and Ors. (supra), while rejecting the contention on behalf of the workmen that the inquiries against the concerned workmen were held in English despite request made by the workmen that it was to be held and recorded in Marathi, and that therefore there was blatant violation of the principles of natural justice, it was observed that no material had been placed on record from which it was possible to hold that the inquiry was held in English, though the material on record did not indicate that the record of the inquiry was made in English, and further that the workmen were represented by the office bearer of a registered Trade Union and the said office bearer was fully conversant with the English language, as also that the cross-examination was conducted by the said office bearer and that therefore it was held that the Labour Court was perfectly justified in rejecting the said contention and holding that there was no breach of the principles of natural justice on that count. Apart from the fact that clear observation in the judgment that there were no materials placed before the Court to hold that the inquiries were conducted in English even if it was requested to be held in Marathi, it was held that there was no breach of the principles of natural justice and that therefore there was no substance in the said objection. It is also to be noted that the matter did not involve the issue as to whether there was any violation of any Standing Orders applicable to the parties in the matter of procedure to be followed for conducting the domestic inquiry.
7. In Hawaldar Singh v. Taigrania Metal & Steel Industries and Ors. (supra), the contention which was sought to be raised was that the inquiry was held in the English language which the workman did know or understand. While rejecting the contention, it was observed that it was clearly admitted by the workman that he was defended by a representative at the inquiry who knew English language and understood the same and in those circumstances, it was difficult to accept the submission that the principles of natural justice were violated. Here again no issue regarding violation of any clause of the Standing Orders was involved.
8. In State of Tamil Nadu v. Thiru K.V. Perumal and Ors. (supra), the imposition of punishment of removal from service on number of charges of misconduct after the domestic inquiry was sought to be challenged on various grounds and the Apex Court therein, while reminding the matter, had directed the Tribunal to ascertain from the records whether any relevant documents were not supplied and whether the non-supply of the said documents had prejudiced the case of the workman before arriving at any final decision in the matter. The decision is primarily on the point that when grievance is made about the non-supply of any relevant document and on that count the inquiry is vitiated, it is the duty of the Tribunal to ascertain whether the non-supply of the document complained of was a relevant document and if so, the non-supply thereof could have caused prejudice to the party’s case.
9. The Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma (supra) has laid down certain guidelines in the matter of requirement of observance of natural justice in the course of domestic inquiry. It was ruled that in case of grievance of violation of procedural provision, it is to be noted that the procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee and they are, generally speaking, conceived in his interest. The violation of any and every procedural provision cannot be said to automatically vitiate the inquiry held or order passed.
Except the cases falling under – “no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the inquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. It has been further ruled therein that:-
“In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions …..”.
It was ruled that where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action – the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. In other words, a distinction must be made between “no opportunity” and “no adequate opportunity”, i.e., between “no notice”/”no hearing” and “no fair hearing”. In the case of former, the order passed would undoubtedly be invalid but in the latter case, the effect of violation has to be examined from the standpoint of prejudice.
10. Applying the law laid down by the Apex Court in the State Bank of Patiala’s case to the facts of the case in hand and considering the Clause 25(4) of the Model Standing Orders, it is evident that it is for the enquiry officer to give option to the workman regarding the language in which the inquiry is to be conducted. The question of choice by the workman in that regard can arise only when the same is offered to the workman and not otherwise. The inquiry essentially is to he conducted by the enquiry officer, Being so, it is for the enquiry officer to make himself acquainted of the information about the choice of the workman, The occasion for the enquiry officer to know the choice of the workman in that regard can arise only when the necessary inquiry in that regard is made by the enquiry officer from the workman and not otherwise. Of course, the workman himself can also express his or her choice in that regard. But the inquiry being essentially to be conducted by the enquiry officer, it will be primarily for the enquiry officer to get himself acquainted about the choice of the workman by making the necessary inquiry in that regard from the workman, Mere passive attitude on the part of the workman in that regard will not empower the enquiry officer to ignore the necessary requirement of the Standing Orders in that regard and to decide himself about the language in which the inquiry is to be conducted. Undisputedly, the records of the case in hand disclose that the enquiry officer had informed the workman that the inquiry would be conducted in Hindi and/or Marathi and the same would be recorded in English. A clear recording to that effect is to be found in the inquiry proceedings which reads as under:-
“Mrs. Kanade states that she has understood the procedure of the enquiry. I further told her that the enquiry will be conducted in Hindi and/or Marathi, however, the same will be recorded in English, Mrs. Kanade has no objection to the same.”
11. The records further disclose that after recording the testimony of Mr. Kanani it was recorded that “That the deposition of Mr. Vasantrai Kanani is over. I explained the same to Mrs. Kanade in Marathi. She states that she has understood the same.” The above recording apparently discloses that it was not left to the workman to make any choice regarding the language in which the inquiry was to be conducted but it was decided by the enquiry officer himself that the inquiry would be conducted either in Hindi or Marathi and it would be recorded in English. The statement in the proceedings quoted above clearly reveal that the enquiry officer had not made any inquiry from the workman but on the contrary, he himself had decided about the language in which the inquiry would be conducted and recorded, and the same was merely communicated to the workman. There is nothing on record to disclose that the workman knew English language. It is also not in dispute that the workman was represented by the officer of the Union. There is no confirmation regarding assent by the Union’s representative in respect of the choice having been made by the workman regarding the language or that the workman had consented to the decision of the enquiry officer as regards the language in which the inquiry was to be conducted and/or recorded.
12. Once it is clear that the Standing Orders, applicable to the parties, clearly require the inquiry to be conducted in the language according to the choice of the workman, and the records nowhere disclose that such an opportunity to make choice being offered to the workman, and on the contrary, the decision of the enquiry officer in that regard was merely intimated to the workman, it is apparent that the mandatory requirement of the Standing Orders was not complied with by the enquiry officer.
13. Bare reading of the Clause 25(4) of the Model Standing Orders would disclose that the said provision is essentially in the interest of the workman. Undoubtedly, once the provision is in the interest of the workman, applying the law laid down by the Apex Court in State Bank of Patiala’s case, it is to be seen whether the workman had waived the requirement of the procedural provision in relation to the choice of language in which the inquiry was to be conducted. The contention in that regard sought to be raised is that the workman never objected to the said procedure and the proceedings disclose that she had consented to the same. As already observed above, the records nowhere disclose that the workman knew the English language. The recording was undisputedly in the English language. The records nowhere disclose that after being intimated of the decision of the enquiry officer to proceed to conduct the inquiry either in Hindi or Marathi and to record it in English, that the workman had given her consent to the same. Undisputedly, neither the representative of the workman had given his consent for the same. There is nothing on record to presume that the workman was made aware of her right and that knowing the same she had waived the same. The question of waiver can arise only when the workman was made aware of the said right and yet she had not either opted to exercise the same or that she had consented for the waiver of the said right. Once the records nowhere disclose any of such things, there is no scope to contend that the workman, in the case in hand, had waived her right as regards the choice of language in which the inquiry was to be conducted.
14. Once it is held that the Standing Orders essentially require choice to be given to the workman as regards the language in which the inquiry was to be conducted and no choice was offered in that regard to the workman and it was unilaterally decided by the enquiry officer to conduct it in a particular language and to record it in another language, would undoubtedly result in grave prejudice and injustice to the workman. It is necessary to give option to the workman as regards the language of the inquiry in terms of the Standing Order’s as it would ensure proper, valid, just and fail-procedure for the workman to defend himself/herself effectively and efficiently. The decision in S.K. Sharma’s case has to be read along with the decision in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors., .
15. Besides, the findings which are clearly borne out from the records disclose that the workman on one occasion was asked to cross-examine the witness in the absence of her representative and further she was asked to dive her statement in the absence of her representative. Certainly therefore the inquiry cannot be said to be a fair and proper inquiry and in that regard, therefore, no fault can be found with the finding arrived at by the Tribunal.
15. As regards the decisions in Godrej & Boyce Mfg. Co. Ltd. v. Ashokan K.K. and Anr. (supra) and CLR 2 and K.M. Sarpabhushana Swamy v. Educational Appellate Tribunal, Bellary and Ors. (supra), they are of no help to the petitioner in any manner. In Godrej & Boyce’s case, the Standing Order specifically required the chargesheet to be served in English language. Therefore, considering the same, the proceedings initiated against the employer inspite of issuance of the chargesheet in English language, alleging unfair labour practice within the meaning of Items 1(a), (b), (d) and (f) of Schedule-IV of the MRTU & PULP Act, 1971 were quashed. In other words, the decision clearly rules that compliance of the Standing Orders cannot amount to unfair labour practice under the MRTU & PULP Act, 1971. The same therefore is of no help to the petitioner in the case in hand.
16. The decision in K.M. Sarpabhushana Swamy’s case was on the point that the acquiescence of the party disentitles him to invoke the writ jurisdiction of the High Court and the party cannot sit back and take chance in proceedings held against him with a view to get favourable order in his favour and turn round to assail the procedure and jurisdiction of authority conducting the enquiry when he finds that the result of the inquiry has gone against him, That is not the case in the matter in hand. Here is a case where there is blatant violation of the provision of the Standing Orders in the matter of choice which the workman was entitled to be offered, before commencement of the inquiry, and that having not been complied with, the inquiry is to be held as unfair and unjust.
17. In the circumstances, therefore, no fault can be found with the impugned order as it requires no interference. Hence the petition fails and is dismissed. The rule is discharged with no order as to costs.