India Photographic Company Ltd. v. Saumitra Mohan Kumar

For Appellant.— Sri Monotosh Mukherjee, Sri Arijit Chowdhury and Sri Sitaram Bhattacharya.

For Respondent.— Sri Sankaradas Banerjee, Sri Swapan Kumar Mallick and Sri Madan Gopal Bose.

The Judgment of the Court was delivered by

Anil Kumar Sen, J.:— This is an appeal against an interlocutory order, dated 30 November, 1982, passed by the learned Chief Judge, City Civil Court. Calcutta, in Title Suit No. 1951 of 1981. By the order impugned the learned Chief Judge had allowed in part an application under Order 39, rules 1 and 2 preferred by the plaintiff. Feeling aggrieved, the defendant, India Photographic Company, Ltd. (hereinafter referred to as the plaintiff), has preferred the present appeal.

2. The plaintiff is an employee of the defendant-company. He was served with a show-cause notice, dated 20 August 1981. In this show-came notice he was charged with a misconduct and the allegation was that he made out and prepared on 5 August, 1981, an order on behalf of the company bearing No. 20385 for 40 rolls × 400 feet of 35 m.m E.C.N film in the name of one Messrs. Sangeeta Production of 23, Lake Road, Calcutta. On the basis of the said order, the plaintiff took delivery of forty rolls of such film from the warehouse of the company against receipt. He, however, later altered or changed the figure “40” appearing in the copies of the order bearing No. 20385 to read as “4” by erasing “0” from the figure “40” to give an impression that order copies were made for only four rolls instead of forty rolls. It was further alleged that the customer's representative being given the second copy of such an altered order, company received payment only for four rolls though forty rolls were taken delivery of from the company. Accordingly, the plaintiff was charged:

“That you had wilfully and wrongly delivered to Messrs. Sangeeta Production 36 rools × 400 feet of 35 m.m E.C.N film in excess against Order No. 20385, dated S August, 1981, so prepared and manipulated/tampered by you without realising or receiving the payment of the price or value for the same or alternatively you had yourself fraudulently and dishonestly misappropriate the said goods or fraudulently and dishonestly sold or otherwise transferred the same and misappropriated the sale proceeds thereof causing heavy financial loss to the company and personal gain to you. You are charged with having committed acts of grave and gross misconduct causing disappearance and loss of 36 rolls × 400 feet of 35 m.m E.C.N film belonging to the company causing pecuniary damage and loss to the company”.

3. In the domestic enquiry proposed the plaintiff made a representation on 15 September, 1981, seeking a right to be represented by a lawyer in view of the nature of the charges levelled and the serious consequences which are likely to follow in the event he is adjudged guilty of such a misconduct. The defendant-company, however, refused to grant any such opportunity to the plaintiff to be represented by a lawyer an the ground that the law does not permit any such representation in a domestic enquiry.

4. Plaintiff instituted the suit as aforesaid challenging the legality of the enquiry proposed to be held and therein filed an application under Order 39, rules 1 and 2 of the Code of Civil Procedure for a temporary injunction restraining the defendant-company from proceeding with the domestic enquiry until the disposal of the suit. The said prayer was strongly contested on behalf of the defendant.

5. The learned Chief Judge allowed the prayer in part by the order impugned when he directed that the ad interim order of injunction restraining further proceedings with the domestic enquiry would remain in force so long as the plaintiff is not allowed to be represented by an advocate of his choice in the enquiry to be held by the defendants against the plaintiff on the basis of the show-cause notice referred to herein before. He further directed that the defendants will be at liberty to proceed with the enquiry against the plaintiff after permitting the plaintiff to be represented by an advocate of his choice at the enquiry. In concluding as such, the learned Chief Judge was of the view that though ordinarily the delinquent has no absolute right to a legal representation in a domestic enquiry and that the same is left to the discretion of the adjudicator yet the said principle is not so absolute that it admits of no exception. Considering the case before him on its merits, the learned Chief Judge took the view that it would be one of the exceptional cases where it should not be left to the absolute discretion of the adjudicator. He was of the view that the allegations against the plaintiff are allegations of fraud and forgery. Had such an allegation been made in a Court the plaintiff would have a right of representation by an advocate. If instead of preferring such a complaint before a Court of law the employer wants to proceed with the domestic enquiry and the plaintiff is ultimately found guilty and be removed from service with a stigma of commission of fraud and forgery serious consequences would follow affecting the plaintiff in his reputation as also affecting his future means of livelihood. In such a situation, according to the learned Chief Judge, denial of legal assistance may amount to denial of natural justice. The view thus taken by the learned Chief Judge is being seriously challenged before us in this appeal by the defendant.

6. Dr. Mukherji, and following him Sri Chowdhury, appearing on behalf of the defendant/appellant have raised a point in support of this appeal on which the judicial opinion is not uniform. It has been contended by them that in a domestic enquiry the person accused must conduct his own case and there is no scope for invoking the principles of natural justice for demanding a right to be represented by another. In any event, according to Dr. Mukherji such principle cannot be stretched so far as to claim as of right to be represented by a lawyer. Strong reliance has been placed by him on the decision of the Supreme Court in the case of N. Kalindi v. Tata Engineering and Locomotive Company, Ltd., [A.I.R 1960 S.C 914] and other decisions following the same. Hence, according to Dr. Mukherji, the learned Chief Judge went wrong in holding that the plaintiff is entitled to claim as of right to be represented at the disciplinary enquiry by a lawyer so that no such enquiry can be held until he be afforded such an opportunity.

7. The point thus raised by Dr. Mukherji has been seriously controverted by Sri Banerji, appearing on behalf of the plaintiff. According to Sri Banerji, the rule with regard to the application of principles of natural justice has undergone a material change since the decision of the Supreme Court in Kripak case, [(1969) 2 SCC 262 : A.I.R 1970 S.C 150]. Sri Banerji, therefore, claims that the learned Chief Judge had rightly held that the principles of natural justice demand in a case like the present one that the person accused should be afforded legal representation though the adjudication is pending before a domestic tribunal. Strong reliance is placed by Sri Banerji on the observations of the Supreme Court in the case of Board of Trustees of Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni, [1983 — I L.L.N 314], in support of his contention that in a case like the present one where the reputation and livelihood of the person accused is at stake he should not be denied legal assistance to support his defence.

8. We have carefully considered the rival contentions put forward before us. The issue raised is a difficult one, more so because the principle involved is yet under evolution and there is no uniformity of judicial opinion. At one point of time the view taken was that the aim of the majority of administrative proceedings should be retention of a simplicity of procedure to a degree such that a party may prepare and present his own case. In particular involvement of lawyer in such proceedings was strongly disapproved on the ground that the same would increase formality and length of hearing and would render the proceeding complicated. Vide De Simth— Judicial Review of Administrative Action, at page 187 and Wraith and Hutchesson on Administrative Tribunals at page 180. Though in the case of Pett v. Grey Round Racing Association, Ltd., [(1969) 1 Q.B 125], Lord Denning once observed:

“If justice is to be done, he ought to have the help of someone to speak for him. And who better than a lawyer who has been trained for the task? I should have thought, therefore, that when a man's reputation or livelihood is at stake he not only has a right to speak by his own mouth, be also has a right to speak by counsel or solicitor”.

But the Master of Rolls himself added note of dissent in a later decision in the case of Enderby Town Football Club, Ltd. v. Football Associatoin, Ltd., [(1971) 1 Ch. 591], when he observed that the said principle has no application in matters of disciplinary enquiry and a party appearing before a domestic enquiry is not entitled as of right to be legally represented. Fenton Atkinson and Cairns L., JJ., went a little further when they held that a rule in the form of rule 38(b) barring legal representation was not contrary to natural justice. Considerations of expertize, speed and cheapness of decision making was held to justify the making of a rule that barred legal representation subject to no exception. Again in the case of Fraser v. Mudge, [(1975) 3 A.E.R 78], Lord Denning himself distinguished Pett case (vide supra), on the basis that cases of discipline fell into a different category and should be decided as quickly as possible without the delay attendant upon legal representation. In a still later case of Maynard v. Osmond, [(1976) 3 W.L.R 711], the Court of Appeal again affirmed the same view to exclude the right to appear by a counsel in a domestic enquiry. The decision in the case of Enderby case (vide supra), was relied upon.

9. Though such was the view expressed it was not without any reservation. Advantage of having a representative trained in law was found to be too frequently ignored. As the legal and factual complications multiply the sophistication of procedural rights may grow exponentially. A lawyer when involved, can act as a deterrent to the summary dismissal of a party's case, can bridge the possible hostilities between the Tribunal and the party, can clear up vagarie and inconsistencies in testimony and can focuss the attention of the Tribunal on elements of a party's claim. Such legal held in interpreting statutes or statutory rules can induce uniformity in the decision and act as a check upon the administrative process. Hence, De Smith himself has observed that at times legal representation of a right quality may be desirable. There has been a tendency over years to expand rather than restrict the right of legal representation where denial of such a right would amount to denial of a fair enquiry. Even in the case of Enderby Town Football Club, [(1971) 1 Ch. 591] (vide supra), it was observed:

“When rules are silent it is a matter of discretion of the Tribunal. When the rules purport to exclude such rules are valid so long they left it open to the Tribunal to permit legal representation in exceptional cases.”

[Emphasis supplied.]

We may refer to a New South Wales decision in the case of Mcnab v. Auburn Soccer Sports Club, Ltd., [(1975) 1 N.S.W.L.R 54], where both the decisions in Pett case, [(1969) 1 Q.B 125] (vide supra) and Enderby case (vide supra), were considered and it was observed that reviewing Courts almost universally left the question of procedure to the Tribunal itself but cases could be envisaged in which natural justice would not be satisfied without the granting by the Tribunal to the party of a right to legal representation. It appears to us that the conclusion which can be drawn is that legal representation is not an essential element of natural justice in all cases but rather the claim for legal representation should normally be left to the discretion of the Tribunal to be allowed in exceptional cases. Though Court should not actively encourage participation by legal practitioners in domestic enquiries the reviewing Courts should not accept the said principle as a cloak for unfairness in order to give a wider ambit to the operation of the said principle than necessary.

10. When we review the Indian decisions we find support for the above conclusion of ours. Though in Khalindi case, [A.I.R 1960 S.C 914] (vide supra), the Supreme Court observed:

“We are unable to accept an argument that natural justice demands that in case of enquiries into chargesheet of misconduct against a workman he should be represented by a member of his union,”

but that was a decision in a case governed by the Industrial Disputes Act, where the action taken could be challenged by raising an industrial dispute. Similar is the case with the decision in the case of Brooke Bond India (Private), Ltd. v. Subba Raman (S.) [1961 — I L.L.J 417]. In the case of Dunlop Rubber Company v. Their workmen, [A.I.R 1965 S.C 1392], in affirming the earlier principle the Supreme Court, however, laid emphasis on the fact that the person accused must be given a reasonable opportunity. It was observed:

“In this connexion we have repeatedly emphasized that in holding domestic enquiries reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employees should be given liberty to represent their case if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request”.

[Emphasis supplied.]

In the case of C.L Subramaniam v. Collector Of Customs, Cochin, [(1972) 3 SCC 542 : A.I.R 1972 S.C 2178], the Supreme Court upheld the delinquent's claim for legal representation though not on the basis of application of the rule of natural justice while in the case of Sarin (H.C) v. Union of India, [1976 — II L.L.N 15] denial of such representation was held not to have vitiated the enquiry. In the last of these cases, it should be noted that the rule excluded legal representation.

11. But a somewhat dissenting note was recorded in the case of Board of Trustees of Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni, [1983 — I L.L.N 314] (vide supra), when Desai, J., observed in Para 11, at page 320:

“… In our view we have reached a stage in our onward march to fair-play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated…”

The same view was again affirmed in the case of Bhagat Ram v. State of Himachal Pradesh, [1983 — I L.L.N 810].

12. On a close reading of the decisions of the Supreme Court, we are unable to accept the extreme contention put forward on behalf of the appellant before us, namely, that in domestic enquiry the person accused must defend his own case and cannot claim as of right any representation, far less legal representation for him. In our view, though Court should discourage involvement of legal practitioner in simple domestic enquiries like disciplinary enquiries for avoiding complication and delay, yet the Court cannot ignore the necessity of such a representation in exceptional cases where refusal of such representation would constitute failure of the enquiry itself. Principles of natural justice demand conceding such a claim. No general rule can be laid down in this respect but the issue must be left for consideration in the light of the facts of each individual case as observed by De Smith:

“Development of case laws on implied rights to legal representation in non-statutory environment should be guided by a realistic appraisal of the interest of the person claiming it as well as of the interest of the organization to which he belongs”.

13. Such being the principles on the basis whereof a claim for legal representation has to be adjudged, we now proceed to consider how far the order made by the learned Chief Judge can be sustained. According to Sri Banerjee, as also according to the learned Chief Judge, the charges under enquiry are serious and complicated. They are charges of forgery and misappropriation. Once established, according to Sri Banerjee, that would not only affect beyond all redemption the respondent's reputation and livelihood but would ruin him totally in his life. It is contended by Sri Banerjee that a person who faces such a charge loses the mental equilibrium and becomes incapable of defending himself. That apart the elements involved are by themselves complicated and but for legal assistance the person accused can hardly make out his defence. Dr. Mukherjee, on the other hand, has strongly contended that the enquiry directed is not with regard to any criminal offence. The issue involved at the enquiry is a simple one, namely, whether the respondent manipulated the records in taking forty rolls from the store when four rolls, were paid for. The mere fact that on the same set of facts the respondent could have been prosecuted for a criminal offence is no ground for thinking that in an enquiry over such a simple issue a lawyer should be involved to render it complicated.

14. As we have pointed out hereinbefore that though Court should ordinarily discourage legal representation in domestic enquiry, it is open to a reviewing Court to consider whether the facts constitute an exceptional case which demands that legal representation should be allowed as otherwise there may be a failure of the enquiry. In the present case, we find the learned Chief Judge in exercising his judicial discretion was conscious of the actual legal requirements and applied the correct legal principles referred to hereinbefore. On the facts of the case, he thought that an exceptional case has been made out and concluded that refusal of legal representation would materially prejudice the respondent at the enquiry which is likely to result in failure thereof. We ourselves might on the same set of facts have come to a different conclusion than what was arrived at by the learned Chief Judge but as a Court of Appeal we cannot set aside the decision of the learned Chief Judge if the view taken by him is a possible view and that had been arrived at on the application of the correct principles of law. Since we are unable to go so far as to hold that such a view could not have been taken at all as was taken by the learned Chief Judge, we are unable to interfere with his decision. That perhaps is the basic limitation of a Court of Appeal in a case like the present one as pointed out by the Privy Council in the case of Rehamatunnissa Begum v. Price, [A.I.R 1917 P.C 116].

15. In the result, the appeal fails and is dismissed. There will be no order for costs.

16. No formal decree need be drawn up.

17. Sanyal, J.:— I agree.