dscsdc

2020

PROJECT

SUBJЕCT : LABOUR LAW

Right to Legal Assistance of Workmen during Domestic Enquiry

Submitted To : Submitted By :
Mr. Prasenjit Kundu Vishal Kumar Arya
Assistant Professor (Law) Semester VI, B.A.L.L.B
RMLNLU, Lucknow Enrollment no-170101163
 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher Mr. Prasenjit Kundu for giving me
such a challenging article and also for his exemplary guidance, monitoring and constant
encouragement throughout the course of this project.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without
which this assignment would not have been possible.

VISHAL KUMAR ARYA

2|Page
 TABLE OF CONTENTS

SCOPE AND OBJECTIVE OF STUDY..........................................................................4

PART I: DOMESTIC ENQUIRY- ORIGIN AND NECESSITY..................................5

PART II : RIGHT OF WORKMAN TO BE REPRESENTED BY LEGAL

PRACTITIONER IN A DOMESTIC ENQUIRY.....................................................7

EMPLOYEES’ RIGHT TO BE REPRESENTED BY A LAWYER WHEN MANAGEMENT IS

REPRESENTED BY LEGALLY TRAINED PERSON 10
WHEN NO REPRESENTATION BY A CO-EMPLOYEE IS AVAILABLE 11
REPRESENTATION BY A TRADE UNIONIST 12
PART III- INITIATION OF DISCIPLINARY PROCEEDINGS DURING
CRIMINAL TRIAL...................................................................................................13

INITIATION OF DISCIPLINARY PROCEEDINGS DURING PENDENCY OF CRIMINAL TRIAL

13
CONVICTION CANNOT FORM BASIS FOR STRAIGHTAWAY DISMISSAL 14
PART IV: CONCLUSION..............................................................................................16

3|Page
 SCOPE AND OBJECTIVE OF STUDY

Today, “domestic enquiry”, occupies a very important position in Industrial Law and the term
“domestic” clearly suggests that it is a purely internal matter between an employer and his
employees. This aim of the project is to understand the basic reasoning behind the very
existence of Domestic enquiry and some other important issues which often tend to
complicate things in real life situations are often unknown to students. The project is an
attempt to bring forth some situations which need special attention from the point of view of
their indispensible nature

First I will discuss the concept of Domestic enquiry, its origin and necessity; then will delve
deeper into important issues like the Right of a workman to be represented by a legal
practitioner in domestic enquiries, and the issue of initiation of domestic enquiry during
pendency of a criminal trial.

4|Page
 PART I: DOMESTIC ENQUIRY- ORIGIN AND NECESSITY

Whenever an employee or a workman is sought to be dismissed or punished, it is necessary

for the employer to conduct a domestic enquiry against him for the purpose of finding out
whether the proposed action is warranted. In some cases, the holding of such enquiries is
made obligatory by a statute. The object of holding an enquiry against the delinquent
employee is to give him a fair chance to present his case and to see that he is not punished
without opportunity to prove his innocence.1 This part elucidates the principles and procedure
followed in conducting domestic enquiries. These principles and procedures are governed, to
some extent, by statutory rules or standing orders but largely, they are enunciation of the
principles of natural justice and their application to the circumstances of the domestic
enquiries, in private employment and of reasonable opportunity as provided under Article
311 of Constitution of India in Government employment. The requirement of holding
domestic enquiries has also been laid down in some rules and regulations in public sector
having the force of law. In private sector the holding of a domestic enquiry is laid down by
standing orders framed under the Industrial Employment (Standing Orders) Act, 1946. The
procedure for holding enquiries has also been laid down by awards of settlements under the
Industrial Disputes Act, 1947. Even where no procedure for enquiry has been laid down by
any statute, award or settlement, the employers are required to follow a reasonable procedure
for the simple reason that otherwise their action is liable to be set aside by the industrial
adjudication. Such principles are commonly known as "principles of natural justice”.

The cardinal principles of labour jurisprudence enjoin upon an employer to hold a domestic
enquiry against a workman honestly and bona fide and with care and caution that such an
enquiry does not become an empty formality. It is an elementary principle of labour law that
while holding domestic enquiry rules of natural justice must be faithfully followed and fair
play strictly ensured. As a well-defined concept, natural justice comprises of two fundamental
rules of fair procedure that a man may not be a judge in his own cause and that a man's
defence must always be fairly heard.2 If there is charge of misconduct of theft against a
workman but during domestic enquiry, he was not given assistance of presenting officer and
1
Karnataka Power Corporation Ltd. v. G.G. Bhat, 2008 L.L.R. 1008 (S.N.) (Karn HC).

2
Biecco Lawrie Ltd. v. State of West Bengal, A.I.R. 2010 S.C. 142.

5|Page
he was not allowed to cross-examine two material witnesses, the second show cause was also
not given to him, the enquiry will stand vitiated and the workman is entitled to be reinstated
with full back wages.3 It has, however, been clarified by the Division Bench of the Karnataka
High Court that mere violation of principles of natural justice by itself will not be sufficient
to invalidate disciplinary action unless the concerned workman establishes that some
prejudice has been caused to him.4
With the growing industrialisation of the country, the disputes between the employers and the
workmen have also grown manifold. Sometimes even technical defects of not observing the
prescribed procedure entail prolonged litigation between the employees and their employers,
much to their annoyance, expense and waste of energy. In almost all disciplinary cases,
conducting of a domestic enquiry is, therefore, a necessity. Even in case of abandonment of
service, an employer has to give notice to workman and hold an enquiry since it is for an
employer to prove such abandonment. Even when the certified standing orders provide that
an employee can strike off the name of the workman if he remains absent for a specified
period, holding of enquiry will be imperative. 5 In one case the Supreme Court has held that if
an employee over-stays her leave, the employer cannot presume that she has abandoned her
duties as stipulated by the certified standing orders and as such holding of enquiry was
necessary.6
However, the services of an employee are terminated on the ground of moral turpitude of a
serious nature and when undesirable social consequences are apprehended or are likely to
follow such enquiry, the non-holding of an enquiry into the misconduct does not invalidate
the termination. But the burden of proving the undesirable social consequences with
appropriate reasons lies on the employer.

Case- Amar Chakrabrthy v. Maruti Suzuki India Ltd., 2010 (4) LLN 571
The appellant was in the service of the Respondent-company. The Management dismissed the
appellant without holding an inquiry mainly on the allegations that he had been participating
in tool-down strike, had been exhorting other workers to slow down the work. So that there is
fall in production of cars, had indulged in holding demonstrations within the factory premises
and raised derogatory slogans against the Management and was threatening the supervisors.
3
Kehar Din v. Labour Court, 1992 (65) FLR 552 (P&H): 1992 LLR 694.

4
H.M.T. Ltd. v. Chhaya Srivastva, 2003 LLR 878 (Karn HC).

5
D.K. Yadav v. J.M.A. Industries, 1993 AIR SCW 1995.
6
Uptron India Ltd. v. Shammi Bhan, AIR 1998 SC 1681.

6|Page
The dismissal order stated that in view of the situation created by the appellant, it was not
reasonably practical to hold an enquiry and in view of the gravity of the misconduct
committed by him, he was dismissed from service. The appellant, therefore, raised an
industrial dispute which came to be referred to the Labour Court for adjudication. But the
Labour Court held that it was for the Management to prove by adducing cogent evidence that
the order of dismissal passed against the appellant was legal. However by a subsequent order,
the Labour Court shifted burden of proof on the appellant. Being aggrieved thereby, the
appellant filed a Writ Petition in the High Court. But the High Court dismissed the Writ
Petition observing that the onus of establishing the plea of victimization or that he had
completed 240 days of service in the last calendar year in order to avail of the benefit of
sections 25F, 25G and 25H was on the workman. The appellant, therefore, approached the
Supreme Court by way of appeal. The Supreme Court observed that while it is true that the
provisions of the Evidence Act per se are not applicable to an industrial adjudication, it is true
that its general principles do apply in proceeding before the Labour Court or Industrial
Tribunal. In any proceeding, the burden of providing the fact lies on the party that
substantially asserts the affirmation of the issue and not on the party who denies it. The
Supreme Court concluded that when no inquiry is conducted before the service of a workman
is terminated, the burden to prove that it was not possible to conduct the inquiry and that the
termination was justified because of the misconduct of the employee, lies on the
Management. Consequently, the Supreme Court allowed the appeal and quashed the
impugned orders of the Labour Court and the High Court.7

7
Amar Chakrabrthy v. Maruti Suzuki India Ltd., 2010 (4) LLN 571.

7|Page
 PART II : RIGHT OF WORKMAN TO BE REPRESENTED BY LEGAL
PRACTITIONER IN A DOMESTIC ENQUIRY

The right of representation to be exercised by a workman depends upon the discretion of the
employer or the enquiry officer but such discretion is required to be exercised in accordance
with the peculiar facts and circumstances of each case. The said right also depends upon the
existence of standing orders or service rules to that effect applicable to the workmen of the
establishment. The real and true criterion in each case, as already stated above, is whether the
refusal of representation generates prejudice or embarrassment and if that result is likely to
cause harm, the refusal of permission for defence through counsel would plainly lack the
element of reasonableness.
In private employment it is necessary that the principles of natural justice should be followed.
Though the right to representation through counsel cannot be claimed as of right even in the
case of a public servant in whose case enquiry is held in accordance with rule 15(5) 8 of the
Central Civil Services (Classification, Control and Appeal) Rules, 1957, the principle is that
when a man is charged with the breach of a rule entailing serious consequences, he is not
likely to be in a position to present his case best as it should be, particularly, when the
accusation against him threatens his very livelihood. So when rightly or wrongly the
employee is under a reasonable apprehension that the enquiry is the result of a pre-conceived
plan and connected action on the part of his department, his request for professional help is
certainly justified and the enquiry officer should give him that opportunity, because his
refusal to accede to that simple request certainly deprives him of an opportunity to defend
himself.

Case- K.C. Mani v. Central Warehousing Corporation, 1994 LLR 312 (Guj HC)In order to
find out whether the petitioner in fact needs a legal assistance or not to defend his case, one
has to find out:

(i) whether it is really a fight between the two unequals;

(ii) whether the charge is simple plain and understandable enough to an average man
of ordinary understanding or is it of complex nature;
(iii) whether the charge against the delinquent is such where some documents are
required to be proved or disproved either because they are false or fabricated;
8
provides for representation of a Government servant charged with dereliction of duty or with contravention of
the rule by another Government servant or in appropriate cases by a legal practitioner

8|Page
 (iv) is it a case where there are number of witnesses to be examined and cross-
examined;
(v) is it a case where some expert witness is required to be cross-examined; and
(vi) what is the intellectual capacity, status and experience of the delinquent facing the
departmental proceedings

Merely because in any departmental proceeding, the Enquiry Officer happens to be a trained
person that by itself does not mechanically vest any right in the delinquent to have a legal
assistance of a lawyer, irrespective of the facts and circumstances of that particular case.
Thus, the ultimate answer as regard the right of delinquent to have legal assistance in matter
of departmental inquiry rests entirely upon the facts and circumstances of that particular case,
and more particularly on the answer to the following two questions, namely:
(i) whether the case against the delinquent employee presents any legal complexity,
making him totally handicapped to defend his case; and
(ii) whether the delinquent facing the inquiry proceedings is academically and
psychologically fit and competent enough to defend himself in absence of an
outside legal assistance.
The answer to above two questions holds a key to the problem whether the delinquent is
entitled to legal assistance in departmental inquiry or not.9

Case- Biecco Lawrie Ltd. v. State of West Bengal, AIR 2010 SC 142
Management was represented by a person who was a commerce graduate and having passed
the diploma course of social welfare. He was not a lawyer but a legally trained person.
Hence, the High Court held that not allowing the representation of the workman through a
lawyer was violation of principles of natural justice. But the Supreme Court did not agree
with the version of the High Court on the ground that the workman would have sought
permission for taking help from the registered trade union as the charges were specific,
simple and not difficult to comprehend and observance of principles of natural justice to the
workman would be a useless formality which is an exception to the rationale underlying the
principles of natural justice. It is yet another exception to the application of principles of
natural justice where on the admitted or undisputed facts only one penalty is permissible and
the court may not insist on the observance of the principles of natural justice because it would
be futile to order its observance as in Karnataka State Road Transport Corporation. v. S.G.
9
K.C. Mani v. Central Warehousing Corporation, 1994 LLR 312 (Guj HC).

9|Page
Kotturappa,10 where the respondent had committed repeated acts of misconduct and had also
accepted minor punishment, it was held that he is not entitled to the principles of natural
justice as it would be a mere formality. The question as to what extent principles of natural
justice are required to be complied within a particular case would depend upon the factual
situation obtained in each case and the principles cannot be applied in a vacuum. They cannot
be put in a straight jacket formula.11

EMPLOYEES’ RIGHT TO BE REPRESENTED BY A LAWYER WHEN MANAGEMENT IS

REPRESENTED BY LEGALLY TRAINED PERSON
Domestic enquiry is claimed to be a managerial function. A man of the establishment does
play the role of a judge. It is held in the establishment office or a part of it. The enquiry
officer combines the judge and prosecutor rolled into one. Witnesses are generally employees
of the employer who directs an enquiry into misconduct. To these uneven scales add the
weight of legally trained minds on behalf of employer simultaneously denying that
opportunity to delinquent employees. The weighted scales and titled balance can only be
restored if the delinquent is given the same legal assistance as the employer enjoys. Justice
must not only be done but must seen to be done is not a euphemism for courts alone, it
applies with equal vigour and rigour to all those who must be reasonable for fair play in
action.
It has been held that 'Legal practitioner' cannot be read within narrow sense as commonly
understood. It is enough if the prosecuting officer without being a legal practitioner is a
legally trained mind with his ability and vast experience as a prosecutor in domestic
enquiries. It was therefore held that where on behalf of the employer an inspector who had
been looking after the domestic enquiries for several years with his ability and vast
experience was allowed to appear and the employer claimed that he was entitled to be
represented by a legal practitioner, it is clear that in such a case, the employee cannot be
denied to be represented by a person having legal knowledge and if the enquiry is carried on
denying opportunity to the employer of legal assistance such domestic enquiry and the
finding thereon and the action taken on that basis would be vitiated.12

10
Karnataka State Road Transport Corporation. v. S.G. Kotturappa, AIR 2005 SC 1933.

11
Biecco Lawrie Ltd. v. State of West Bengal, AIR 2010 SC 142.

12
C.S. Deshpande v. Government of Maharashtra, 1991 (II) LLJ 1 (Bom HC).

10 | P a g e
In a landmark judgment, the Supreme Court has held that the representation by an advocate
of an employee in the enquiry will not be violative of natural justice even when the
management is being represented by a law graduate and charges are not complicated. 13
Further, the importance or relevance of evidence, documentary or oral, may not be realized
by a lay person. A legally trained person would, however, realize the importance thereof. If
the Management Representative is a legally trained person, he would be able to produce, for
the consideration of the Enquiry Officer, the material necessary to substantiate the charges.
The importance of such evidence may escape an employee who does not have similar
assistance. The necessary evidence not having been produced before the Enquiry Officer, it
may be difficult for the employee to sustain a reasonable challenge/judicial review to the
action. The scale would be unfairly tipped against the employee leading to an unfair result.

WHEN NO REPRESENTATION BY A CO-EMPLOYEE IS AVAILABLE

Standing order No. 32 provides that an employee can be represented by a co-employee and
not by a lawyer. There was no provision in the standing order for appointing representing
officer. The Corporation has been appointing representing officer in the enquiry who are
experienced persons. The delinquent air hostess, sought permission to be represented by a
lawyer in the domestic enquiry as she was unable to get assistance by any of her co-
employees. The permission was refused and the petitioner challenged the said order. It has
been held that the Corporation has appointed experienced persons in its employment as
representing officers irrespective of the fact that there was no provision in the standing orders
for appointment of representing officer, the petitioner was thus entitled to be represented by a
legal officer or legally trained person to represent her in order to avoid breach of Article 14 of
the Constitution, since a similar facility was being denied to the delinquent employee. It was
further observed that the delinquent employee has no friends in the Corporation as it may
happen to a newly recruited person who may be unable to secure a person who would be a
match to the presenting officer then the relief claimed cannot be denied.14

REPRESENTATION BY A TRADE UNIONIST

The Model Standing Orders permit representation to the workman of an office bearer of the
trade union of which the workman is a member. However where the standing order of the

13
Harinarayan Srivastav v. United Commercial Bank, AIR 1997 SC 3658.

14
<http://shodhganga.inflibnet.ac.in/bitstream/10603/66023/18/18_chapter%204.pdf>

11 | P a g e
Company provided that an employee can be represented in an enquiry by any of his co-
employee. In such cases, refusal to allow an outsider office bearer of a Trade Union leader
does not violate the principles of natural justice.15

Case- St. Stephans Hospital v. Workman Shri S.K. Adhikari, 2009 LLR 246 (Del HC)
The respondent was working with the petitioner hospital as a cashier and he was charge-
sheeted for shortage of certain amount and for tampering with certain vital record. A retired
Additional District Judge was appointed as the Enquiry Officer. The respondent requested
him to permit to be represented by one Mr. Hamilton who was the President of St. Stephans
Hospital Employees' Association. The request was however turned down by the Enquiry
Officer on the ground that Mr. Hamilton had never been the employee of the said hospital
and that therefore he was an outsider. Later the enquiry against the respondent was conducted
and after finding him guilty of the charges, he was terminated from service. The respondent
thereafter raised an industrial dispute which was referred to the Labour Court. The respondent
raised inter alia an issue that he was not provided a proper opportunity of defending himself
as he was not permitted to be represented by the person of his choice i.e., Mr. Hamilton. The
Labour Court upheld the respondent's contention and set aside the order of termination
observing that the respondent was entitled to be represented by Mr. Hamilton who was the
President of the Employees' Association of which the respondent was a member. The
petitioner hospital therefore filed a writ petition and challenged the order of the Labour
Court, contending that the rules of disciplinary enquiry permitted the delinquent to take
assistance of a co-employee only and not any outsider of his choice. The respondent on the
other hand submitted that the relevant rule was violative of the principles of natural justice.
The High Court held that the delinquent's right to be represented in a disciplinary enquiry by
an advocate or agent can be restricted or controlled or regulated by stature, rules, regulation
or standing orders and a delinquent has no such right unless the law specifically confers that
right upon him. It was further held that the regulation permitting the employee to be
represented only by a co-employee cannot be said to be in conflict with the principles of
natural justice. Hence the petition was allowed and the matter was remanded to the labour
Court for deciding it afresh.16

15
<http://shodhganga.inflibnet.ac.in/bitstream/10603/66023/18/18_chapter%204.pdf >

16
St. Stephans Hospital v. Workman Shri S.K. Adhikari, 2009 LLR 246 (Del HC).

12 | P a g e
PART III- INITIATION OF DISCIPLINARY PROCEEDINGS DURING CRIMINAL
TRIAL

Sometimes workmen indulge into acts of violence at the instigation of the union leaders and
in such cases the employer usually lodges an F.I.R. with the police and persuades the police

13 | P a g e
to prosecute such workmen in the criminal courts, and when the charge-sheet is issued to
such workmen pending criminal proceedings then the first objection of the workman usually
is that the proceedings of the domestic enquiry instituted against him be stayed till the
finalisation of the criminal cases on the ground that this will defeat his defence in the criminal
trial. In such cases, if the charges levelled against the workman are similar as in the criminal
court, then it is desirable that the proceedings of domestic enquiry be stayed.

Supreme Court decision where it has been laid down that the judgement of the trial court
could not always be recorded as binding in a departmental enquiry. If the trial of the criminal
charge results in conviction, disciplinary proceedings is bound to follow against the
delinquent so convicted even in case of acquittal proceedings, such proceedings may follow
where the acquittal is not honourable. The usual practice is that where a delinquent is being
tried on a criminal charge, the management postpone the holding of departmental enquiry and
await the result of the criminal trial and departmental proceeding follows on the result of the
criminal trial.17

However, the question whether the principles of natural justice have been violated in not
giving the due and proper weight to the findings of the criminal court would depend on the
facts of each case. Where there are service rules or standing orders in this behalf then those
must be followed.18 It is not a requirement of principles of natural justice that no employer
should hold against his employee a departmental enquiry in respect of the very same charges
which are pending for trial in a criminal court till the termination of such trial. 19 But at the
same time it must also be remembered that if the criminal court acquits an accused on merits
finding him innocent then it is certainly not open to Labour Court/Industrial Tribunal much
less an officer in a domestic enquiry to find him guilty of the very same charge.20

Even if the prosecution of an employee in criminal proceedings results into his acquittal,
there is no bar for the management to hold an enquiry against the workman. Once the
cardinal difference between a criminal proceeding and a disciplinary proceeding is kept in
mind there would be no scope for any confusion on this account. The dominant purpose of a
17
State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723.
18
R.P. Kapoor v. Union of India, AIR 1964 SC 787.

19
Divisional Manager, LIC of India Ltd. v. Shariff Ahmad Nagranim, 1969 (II) LLJ 470 (All HC).

20
Rama Bahadur v. M/s Tunge Bhadra Sugar Works Pvt. Ltd., 1979 Lab IC 972 (Kant HC)

14 | P a g e
criminal proceeding is to achieve the protection of the society at large and the public, while
that in the disciplinary proceeding is purity and efficiency of public service. Obviously
therefore, the fields of operation of the two proceedings are quite different and independent.
The principle of issue estoppel has no application to a departmental proceeding, and applies
to a criminal proceeding only. Neither Article 20(a) of the Constitution of India nor the
principle of issue estoppel can absolutely bar disciplinary proceedings after acquittal. The
propriety and reasonableness of such disciplinary proceedings after acquittal is a different
manner. The only thing is that the acquittal should receive careful consideration. Article
20(2) of the Constitution only debars a subsequent criminal trial and not departmental
proceedings.21

CONVICTION CANNOT FORM BASIS FOR STRAIGHTAWAY DISMISSAL

An employee was arrested by police for alleged commission of offence under Indian Penal
Code, 1860 and Arms Act, 1959. He pleaded guilty and was convicted. However, he was
released under Probation of Offenders Act, 1958. He was dismissed from service on such
conviction which was challenged by the concerned employee. It has been held that no doubt,
convictions by the criminal court for an offence involving moral turpitude and punishable
with imprisonment form the basis for disciplinary action being taken, mere arrest will not
enable the disciplinary authority to take disciplinary action. In fact, a charge was framed only
on the basis of the arrest of the employee by the police and while the disciplinary proceedings
were pending, the criminal court convicted him for a different charge. Since the charge
levelled against the employee in the disciplinary proceedings and the conviction by the
criminal court were for different offences and one did not have any relation to the other, it
had been held by the Madras High Court that on the basis of conviction by the criminal court,
straightaway a punishment of removal from service cannot be imposed.22

It is a settled principle of law that the criminal enquiry is quite distinct from the domestic
enquiry. And the rules applicable to a domestic enquiry, do not apply to cases of criminal
enquiry or trial.23

21
H.L. Kumar, ‘Law relating to Disciplinary Proceedings in Industries’, (10ed. Universal Law Publishing).

22
Sundram v. Pallavan Transport Corporation Ltd., 1988 (56) FLR 40 (Mad HC).

23
Vasant Ladoo Naik v. Kohinoor Mill No. 1, 1992 CLR 853.

15 | P a g e
 PART IV: CONCLUSION

The term "domestic enquiry" occupies an important position in industrial law and is well-
known on account of the introduction into the field of domestic enquiry, of well defined
principles of natural justice and fair play whose compliance during the course of the enquiry
proceedings is a must if the enquiry proceedings have to be held valid. It is called "domestic
enquiry" because it is considered purely an internal matter between an employer and his
employees. Care must always be taken to see that the domestic enquiries are not reduced to
empty formalities, but they should be conducted with scrupulous regard to the requirements
of natural justice the purpose of which is to safeguard the position of the person against

16 | P a g e
whom a domestic enquiry is being conducted, so that he may be able to meet the charge
levelled against him properly.

In considering whether natural justice implies a right to legal representation, one must recall
that natural justice demands only minimum safeguards of fair adjudication, and not ideal
standards. A person threatened with social or financial ruin by disciplinary proceedings in a
purely domestic enquiry may be gravely prejudiced if he is denied legal representation. Now
the right to legal representation has begun to find its way into disciplinary proceedings and it
has been held that refusal to allow a legal practitioner to appear for the delinquent employee
is a denial of reasonable opportunity guaranteed in Article 311 of the Constitution.

There are so many instances of appointment of an Enquiry Officer, who is well acquainted
with the employers so that the decision passed him can be in favour of the employers. This is
a very sad situation because the poor workman, who bestows faith in this justice system
doesn’t realize he is subject to trickery. Due to his lack of intellect and understanding of the
workings of the system, the workman is adjudged guilty.

Sometimes workmen indulge into acts of violence at the instigation of the union leaders and
in such cases the employer usually lodges an F.I.R. with the police and persuades the police
to prosecute such workmen in the criminal courts, and when the charge-sheet is issued to
such workmen pending criminal proceedings then the first objection of the workman usually
is that the proceedings of the domestic enquiry instituted against him be stayed till the
finalisation of the criminal cases on the ground that this will defeat his defence in the criminal
trial. In such cases, if the charges levelled against the workman are similar as in the criminal
court, then it is desirable that the proceedings of domestic enquiry be stayed. There is no bar
for simultaneous proceedings. Yet there may be cases when it would be appropriate to defer
the disciplinary proceedings awaiting disposal of criminal case. It is neither possible nor
advisable to evolve a hard and fast straight-jacket formula valid for all cases and of general
applications without regard to the facts and circumstances of each case.

17 | P a g e
BIBLIOGRAPHY

BOOKS-
1- H.L. Kumar, ‘Law relating to Disciplinary Proceedings in Industries’, (10ed. Universal
Law Publishing)
2-P.L. Malik’s ‘Labour and Industrial Law’ (16ed, EBC)

WEB SOURCES
1 <http://shodhganga.inflibnet.ac.in/bitstream/10603/66023/18/18_chapter%204.pdf>,

18 | P a g e
19 | P a g e