AI Structured Summary
Not yet generated for this judgment
Judgment
G. Bikshapathy, J.—The question that falls for consideration in both the Writ Petitions is whether the Employee can take the assistance of a co-employee and whether Clause 521 (10) (a) of Sastry Award is constitutionally valid. As common questions of law are involved, both the Writ Petitions are dealt with jointly.
Before delving into the legal aspect, it is necessary to trace out certain individual facts. The petitioner in W.P.No.7524 of 1992 was appointed as Messenger in the State Bank of Hyderabad, Machilipatnam in 1985. Disciplinary proceedings were initiated against the petitioner under the provisions of the Sastry Award and Desai Award. During the course of enquiry, the petitioner sought the assistance of one Sri R. Shyam Sunder, an employee working in the Bank. The Enquiry Officer rejected the said assistance interpreting the provisions of Clause 521 (10) (a) of Sastry Award read with Paragraph 18-28 of Desai Award which state that the employee shall be permitted to be defended by a representative of Registered Union of Bank Employees or with the Bank''s permission, by a Lawyer. Aggrieved by the rejection of the request of the petitioner, assistance of the co-employee, the present Writ Petition is filed challenging the provisions of the Sastry Award in Paragraph 521 (10)(a) in so far as it restricted right of choosing the defence assistance.
In W.P. No. 12967 of 1989, the petitioner was working as a Clerk-cum- Cashier. He was charge-sheeted for alleged misappropriation of the funds of the Bank, He appeared before the enquiry along with the defence assistant Sri R. Shyam Sunder on 17-12-1988,17-1-1989 and on 14-2-1989. But, however thereafter the petitioner was not allowed to take the assistance of the said Shyam Sunder, a co-employee of the petitioner on the ground that the provisions of Sastry Award and Desai Award do not permit the co-employee to represent the workman.
It is the case of the Bank, that the said R. Shyam Sunder is an employee of the Bank. But he is not a representative of the Union and he was not authorised by the Union to render defence assistance to the Petitioner and therefore he is not entitled to assist the petitioner.
In the counter filed on behalf of the Bank, it is further stated mat the disciplinary enquiries were initiated against the petitioners in accordance with the Awards governed in the conditions of the service of the Bank in the Banking Sector. Though the Respondents highlighted the gravity of the misconduct committed by the petitioners, I am not inclined to go into the said aspect inasmuch as a very limited question is involved in the Writ Petition viz., whether the bank is justified in denying the defence assistance of a co-employee.
It is also the case of the petitioners that they were subjected to criminal cases and that they are ended in acquittal and therefore, it would not be proper for the Bank to initiate fresh proceedings on the very same misconducts. This contention also does not hold water inasmuch as the grievance in these Writ Petitions is very limited as stated supra.
It is not in dispute that the petitioners are the employees working in the Banking Sector and are governed by the Sastry Award and Desai Award. The petitioners are governed by said awards and they are otherwise known as award staff. Therefore, the terms and conditions of the Award are binding on both the employees as well as the Respondent Bank. It is also not denied that Sri R. Shyam Sunder though a member of a Trade Union, is not an office bearer of any Union. In both the cases the petitioners intend to take the assistance of Sri R. Shyam Sunder who appears to be having sufficient knowledge in the departmental proceedings.
It is the case of the petitioners that Sri R. Shyam Sunder is a co-employee, that he is well versed with the procedures in disciplinary matters, that the Bank had permitted him in number of disciplinary cases to defend delinquent employees, that they have confidence in him and therefore they contend that they are entitled to have the assistance of the co-employee. It is not necessary that he should be an authorised representative of a Registered Trade Union of the Bank employees. On the other hand the learned counsel for the Respondent Bank vehemently submits that the terms in the Award are very specific and the employee cannot travel beyond the terms and conditions stipulated in Sastry Award. Any deviation from the Award would be nothing but amending the terms of the Award which is not permissible. The learned counsel further submits that the plain reading of the provision does not admit of any conclusion conferring a right on the employee to seek the assistance of the co-employee.
In this context, it is necessary to extract the relevant paragraph in the Award. Paragraph 521 (10) (a) of Section 3 Chapter XV of Sastry Award is reproduced below:
"an employee against whom disciplinary action is proposed or likely to be taken shall be given a charge-sheet clearly setting forth the circumstances appearing against him and date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give, his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the officer conducting the enquiry, to cross-examine, any witness on whose evidence the charge rests and to examine witnesses and produce other evidence the other evidence in his defence. He shall also be permitted to be defended by a representative of a registered union of bank employees or. with the bank''s permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him''
The learned counsel for the Bank submits that the petitioner shall be permitted to be defended only by a representative of a registered trade union of bank employees or alternatively he may be permitted to be defended by a lawyer with the permission of the Bank. Therefore if any employee is chosen as defence assistant, he shall be authorised by a registered trade union of bank employees. Otherwise, he cannot be allowed to take the assistance of a co-employee.
Chapter 15 of Sastry Award relates to the disciplinary proceedings and the method and manner in which the proceedings are required to be conducted is stipulated therein. The principal purpose in framing the disciplinary enquiry rules is to:
(a) appraise the delinquent employee of the misconduct alleged to have been committed by him.
(b) conduct the enquiry by giving a fair and proper opportunity during the enquiry keeping in view the principles of natural justice; and
(c) to pass appropriate orders either punishing him, or exonerating him. It need not be emphasised that observance of principles of natural justice is the cardinal principle in the departmental enquiries. In order to ensure that the interests of delinquent employees are adequately safeguarded, they are permitted to have the defence assistance through the representatives of the registered trade unions and in cases of complicated nature of charges, the Bank is vested with the descretion to permit the employee to be defended by a Lawyer. The point, that is required to be considered by this Court is whether the petitioners can only have the benefit of defence assistance from the representatives of the registered trade union of the bank employees or the assistance of a co-employee also. It is noticed from the provision that the assistance of a co-employee is not expressly mentioned in the paragraph. But, however it is submitted by the learned counsel that when tine employee is permitted to take the assistance of a representative of a registered trade union of the bank employees and that the Trade Union consists of the bank employees themselves there is no reason why the assistance of Bank employee himself cannot be taken aid of by the delinquent employees during the departmental proceedings. It is also submitted that there is no prohibition as such in the Award. In the absence of such an express prohibition it is always open for the delinquent employee to seek the assistance of the co-employee. The Bank, however, insists that Sri R. Shyam Sunder should have been nominated or authorised by the Union to render the defence assistance to the employee and therefore in the absence of such an authorisation, he cannot be permitted to defend the petitioners in the disciplinary proceedings.
At the time of passing Sastry Award, it was obvious, the Workmen were not so much acquainted with the labour laws and the techniques of conducting the departmental enquiries. It was felt that the representatives of the trade Unions would be in a better position to defend the workmen. Therefore, the provision was made obliging the management to permit the Representative of a trade union. These are to be necessarily construed as unstated assumptions, underlying the principle. As the time passed, the Workman improved his skills and abilities. Their intellectual capabilities are on ascending order.
I have given my anxious consideration to the issue which is seriously contest by the parties.
The trade unions are formed under the provisions of the Trade Union Act. Admittedly in the Banking Sector the employees working in the banks formed their own unions or associations under the Trade Union Act. Thus the Unions consists of the members of the Bank employees. These employees only elect the office bearers of the union.
The question that falls for consideration is that when the office bearer or representative of the union is entitled to render the defence assistance to an employee, can a workman himself, who is none-else than the member of the union be prohibited from acting as defence assistant to the delinquent employee.
As already noticed the very purpose of holding domestic enquiries before awarding the punishments is to appraise the delinquent employee of the misconducts committed by them and to hold the enquiries giving proper opportunities to the delinquent employees. Providing defence assistance is one of the modes of affording reasonable opportunities to the delinquent employees to represent their cases before the departmental enquiries.
It is not the case where the petitioners are asking the assistance of an outsider wholly unconnected with the Banking Organisation or the assistance of a Lawyer. It is to be noted that the enquiries are conducted by the respondent Bank with the experienced officers and presenting officers are appointed to defend the actions of the Institutions. The officers presenting the case on behalf of the Bank also possess necessary skills in conducting the enquiries. The petitioners are award staff. One of them is a Messenger and another is a Clerk-cum-Typist The disciplinary proceedings are initiated for major punishment and the punishment that may include even dismissal from service, which was the effect of depriving the livelihood of the person. In such an event, would it be proper for the authorities to deny the assistance of the co-employee on the ground that the award did not specifically permit the delinquent employee to take the assistance of a co-employee.
As the provision is made in the interest of employees with a view to afford real and effective opportunity during the disciplinary proceedings, the provision has to be construed liberally, broadly and meaning-fully, I am not interpreting the award of the Sastry Tribunal, but at the same time, the provision in the award is such that it runs close to the life of the employee. Therefore, every endeavour shall be made by the Court to construe such provision in a manner so as to promote and carry out the benignant intent behind the clause in the award.
The Supreme Court in The Collector of Customs, Baroda Vs. Digvijaysinhji Spinning and Weaving Mills Ltd., held:
"It is one of the well-established rules of construction that "if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such cases best declaring the intention of the legislature". It is an equally well-settled principle of construction that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which are statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system"
Yet in another case, the Supreme Court in B. Banerjee Vs. Smt. Anita Pan, , held:
"there is a presumption of constitutionality in favour of a legislation and hardship in a few instances would not affect the constitutionality of social legislation. Where two interpretations are possible mat which validates the statute and shortens litigation should be preferred to any literal, pedantic, legalistic or technically correct interpretation which invalidates the enactment or proliferates litigation. Promotion of public justice and social gain at the cost of straining language of a statute is permissible. Statutory construction relating to complex problems of the community cannot be hide bond by orthodox text-books canons. In interpreting social legislation Court can refer to legislative proceedings and common knowledge and other relevant factors including the statement of object and reasons"
In The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, the Supreme Court held:
"in social welfare legislation literal construction is not commended, but the Court must look to the object and purpose of legislation"
In Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and Others, , the Supreme Court said:
"It is true that under the guise of judicial interpretation the Court cannot supply casus omissus, but the Courts must always try to give effect to the intention of the legislature. The Courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective and an attempt must always be made to reconcile the relevant provisions so as to advance the remedy intended by the Statute".
In the words of Lord Shaw "Where the words of a statute are clear, they must of course, be followed, but in their Lordships'' opinion where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative to be rejected which will introduce uncertainity, friction or confusion into the working of the system Shahnon Realities v. Wille De Michael 1924 AC 185 and also Jones v. Director of Public Prosecutor 1962 AC 635.
A provision in the award cannot be construed to defeat its manifest purpose and general values which animates its structure. In a democratic polity leave alone the statutory provisions even the statutory condition of service of employees are to be construed ensuring the security of fundamental human rights including right to life. The construction of clause should always agree to justice and reason. As there is always a presumption against the law makers against injustice and unreason, so is the case in case of awards. Though the meaning to be ascertained only from the words employed in the clause, but the set up and context are also relevant for ascertaining what exactly was meant to be conveyed by the terminology employed. Therefore, the emphasis of the clause is the function, utility, aim and purpose.
It is not in dispute that the award or some of its clauses can be questioned under Article 226 of the Constitution of India if they contravene the Constitutional limits or are ultra vires of fundamental rights. The Court is aware of the provision of Section 36A of the Industrial disputes Act, that in case of doubt as to the interpretation of an award or settlement the appropriate Government may refer this question to such Labour Court or Industrial Tribunal as it may thinks fit. None of the parties are expressing any difficulty in the interpretation of the award. But, individual employees challenged the clause on the ground that it offended Article 14 of the Constitution. When the constitutionality of a particular provision in the award is assailed as offending fundamental rights, it is always open for the Court to test its validity under Article 14 of the Constitution of India. In such an event it is within the jurisdiction of the Court to either declare the clause as unconstitutional or read down the provision in tune with the constitutional mandate.
The awards of the Tribunals under the Industrial Disputes Act occupy very special place compared to other awards. Therefore, it is not normally desirable to interfere with such awards on technical grounds. The Supreme Court held that the Courts should interpret the award in such a matter as to uphold its validity as far as possible.
The Supreme Court in Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Others, observed:
"the object of enacting the Industrial Disputes Act 1947 and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a Government to an industrial tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication. In all such cases art attempt should be made by Courts exercising judicial review to sustain as a far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hyper-technical grounds."
Therefore the Court always seeks to avoid a construction if it causes unjustifiable inconvenience to persons for whose benefit the provision is made. Though the provision in the award cannot be tested on the anvil of the principles of interpretations of statutes, yet it can be scrutinised on the touch stone of equality -clause enshrined under Article 14 of the Constitution of India. It was sought to be contended by the learned counsel for the petitioner that intendment of the clause is to provide sufficient protection and safeguards to the employees who are subjected to disciplinary proceedings. If the clause does not effectively function for the purpose for which it was brought into award, it becomes otiose. It is also submitted that the clause created classification inasmuch as those employees who were assisted by the duly authorised representatives of the union, while the other category of employees are those who are not allowed to be represented by the union. Hence, the submission in substance is that when the award aims at benefiting the employees in general, but permitting the defence assistance through the representatives, who are alone authorised by the union while refusing in respect of others is highly arbitrary and discriminatory. More over, in the present days the employees are quite acquainted with the rights, duties and obligations and in such a situation depending on the authorisation of the union would not be in the interest of the individual employee.
Providing defence assistance to an employee during the disciplinary proceedings is an embodiment of principles of natural justice forming part of Article 14 of the Constitution of India. The power is conferred under the clause to sponsor the representatives of the union to assist delinquent employees. No guidelines have been issued as to how this power is required to be exercised, thereby conferring an unbridled and uncanalised and unrestricted power to the Union. It has been held by the Supreme Court in catena of decisions that conferment of power with discretion without any guidelines, without any just, fair or reasonable procedure is constitutionally anathema to Articles 14, 16(1), 19(1)(g) and 21 of the Constitution. In a system governed by rule of law, discretion, when conferred upon the executive authorities must be confined within the defined limits. Thus, the clause should be construed so as to be in consonance with the right and reason, intended to secure social and economic justice and conform to the mandate of equality clause in Article 14 of the Constitution of India. As observed by Lord Denning in "The Discipline of Law", a Judge must not alter the material of which a law or instrument is woven, but he can and should iron out the creases and if one may venture to say, make articulate the inarticulate promise but make articulate only were it follow from necessary compulsions of the situations and the constitutional position".
In Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, , the Supreme Court observed:
"Even in domestic enquiry there can be very serious charges and adverse verdict may completely destroy the future of the delinquent employee. The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Such an enquiry is generally treated as a managerial function and Enquiry Officer is more often a man of the establishment Ordinarily he combines the role of Presenting-cum-Prosecuting Officer and an Enquiry Officer, a Judge and a Prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a Domestic Tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a Domestic Tribunal. We have moved far away from this stage. The situation is where the employer has on his pay rolls labour officers, legal advisers, lawyers in the garb of employees and they are appointed Presenting-cum-Prosecuting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself. Now if the rules prescribed for such an enquiry did not place an embargo on the right of the delinquent employee to be represented by a legal practitioner, the matter would be in the discretion of the Enquiry Officer whether looking to the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, the delinquent employee in order to afford reasonable opportunity to defend himself should be permitted to appear through a legal practitioner. Why do we say so? Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere. Domestic enquiry is claimed to be managerial function. A man of the establishment dons the role of a judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court presided over by an impartial arbitrator or a Court presided over by an unbiased Judge. The Enquiry officer combines the Judge and Prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to inquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it applies with equal vigour and rigor to all those who must be responsible for fair play in action and a quasi-judicial Tribunal cannot view the matter with equanimity on inequality of representation.
It is further stated that:
The expression "life does not merely connote animal existence of a continued drudgery through life. The expression "life" has a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect the reputation or livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardised and the same can be putin jeopardy only by law which inheres fair procedures.
In Delhi Transport Corporation cases P.B. Sawant. J observed thus:
"The right to lite includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be mockery of them".
The Supreme Court in very many cases held that where the Enquiry Officers and Presenting Officers are specially trained persons and possess expertise in departmental enquiries, it is always desirable that the delinquent employee also should be permitted to be represented by a lawyer (See, Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, , C.L. Subramaniam Vs. Collector of Customs, Cochin, , and A.K. Roy and Others Vs. Union of India (UOI) and Others, . But in this case, the employee is not asking the assistance of a lawyer, but only a co-employee. It is also relevant in this context to note that in the disciplinary rules framed by the State Government and Central Government and also the Standing orders framed by the industrial establishments provisions do exist conferring right to the employees to seek the assistance of the co-employee.
Rule 20 (8) (a) of the A.P. Civil Services Rules contemplate that Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presiding Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case so permits. Similar provision exists under Rule 14 (8) (a) of the Central Civil Service Rules, 1965. Even under the model standing orders under the Industrial Employment Standing Orders Act, 1946 it is clearly stipulated that the Workmen may take the assistance of Co-worker to help him in the enquiry if he so desires. Thus, in all the rules providing disciplinary procedures taking assistance of a co-employee is made ''an essential ingredient in the process.
The employment under the public undertaking is a public employment and a public property. Therefore, not only, the undertaking but also the society has a stake in their property and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. Before depriving an employee all the means of livelihood to himself and his dependants the procedure prescribed for the purpose must be just, fair and reasonable.
I have carefully analysed the clause in the award in which the employee is permitted to seek the assistance of representatives of the trade union or with the permission of the bank, a lawyer. This provision in a way confers unfettered right on the trade union to represent or authorise its member to render defence assistance to the delinquent employee. But that cannot be a ground to declare the clause as unconstitutional. As already noted by me, the enquiry officer and Presenting Officer nominated by the bank are of officer cadre. Whereas the employees charged with the misconduct are messenger, clerk-cum-Cashier. While considering the request of the employees for engagement of a lawyer various considerations would weigh, such as the status of the employee, nature of charges and the type of witnesses to be examined so also the variety of documents to be scrutinised. But, in the instant case, the employees are only requesting the assistance of the co-employee to represent before the employer. In such a situation it would not be in the interest of the employee to strike down the clause, but it is always desirable to save the constitutional validity of the provision by reading down so that it can be saved from the attack of unconstitutionality. The doctrine of reading down or of recasting the statute can be applied in limited situations. Firstly, it is invoked for saving a statute from being struck down on account of its unconstitutionality. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. Where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. In the words of K. Ramaswamy J. in Delhi Transport Corporation case:
"the Courts though have no power to amend the law by process of interpretation, but do have power to mend it so as to be in conformity with the intendment of the legislature. Doctrine of reading down is one of the principles of interpretation of statute in that process. But when the offending language used by the legislature is clear, precise unambiguous, violating the relevant provisions in the Constitution, resort cannot be had to the doctrine of reading down to blow life into void law to save it from unconstitutionality or to confer jurisdiction on the legislature"
Thus, the statute is always presumed to be constitutional and where ever necessary a constitutional meaning will be inferred to preserve validity. It is not the case of the Bank that sparing the services of Sri Shyam Sunder either would be impracticable or cause inconvenience to the Banking, but on the other hand the dear stand taken by the Bank is that the provisions of the award would not permit the co-employee of the Bank. Situations may arise where the representatives sponsored by the Union may not be equipped with in the Departmental enquiries or sometimes it may be that on account of extraneous reasons the Union may refuse to sponsor the representatives. Under these circumstances, and keeping in view the benign object of the clause, instead of striking down the clause, as unconstitutional, I am inclined to read down the said clause so as to give meaningful effect. Thus the clause has to be construed as not only the representatives of the trade union, who can defend the employee, but any co-employee chosen by the charged employee should also be treated as representative of the union for the limited purpose of defending the employee in terms of Clause 521 (10) (a) of Sastry Award read with Clause 18.28 of Desai Award. By this process, the management would not be put to any prejudice; on the other hand the workmen will have the satisfaction of availing the defence assistance of their choice and thereby fulfilling the basic principle of fair play in action.
Both the writ Petitions are accordingly disposed of in terms of the construction of the clause as indicated above. Consequently the petitioners/ charge-sheeted employees at their option either can have the assistance of authorised representative of the trade union or in the alternative they can be permitted to be defended by a co-employee of their choice.
There shall be no order as to costs.