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PETITIONER:

M/S CIPLA LTD. & ORS.

Vs.

RESPONDENT:

RIPU DAMAN BHANOT & ANR.

DATE OF JUDGMENT: 12/04/1999

BENCH:

S.Saghir Ahmad, S.Rajendra Babu

JUDGMENT:

S.SAGHIR AHMAD, J.

Leave granted.

The appellant is a pharmaceutical company engaged in

manufacturing and marketing of various pharmaceutical

products.

The respondent was appointed as a Medical

Representative of the appellant with his headquarter at

Ludhiana. Under the jobs assigned to the respondent, he was

to visit the doctors, hospitals and chemists to promote the

sale of medicines manufactured and marketed by the

appellant. One of the duties of the respondent was to

submit a daily report of the visits made by him specifying

the persons visited and the samples or promotional materials

distributed by him. In the daily report of 31st of August,

1989, the respondent indicated that he had visited one Dr.

K.R. Singla at Ropar. He also indicated in his daily

report that he had visited M/s Singla Medicos, Ropar to whom

he distributed various samples of the appellant's products.

It was later discovered by the appellant that Dr. Singla

had already died on 7th of August, 1989, having been killed

by the terrorists and that M/s Singla Medicos at Ropar had

been closed from 08.08.1989 onwards.

Rule 14 of the Service Rules applicable to the Medical

Representatives employed in the appellant's Company provides

as under:-

"14. MISCONDUCT

(d) Fraud or dishonesty in connection with the

Company's business or property.

(1) Submission of false daily reports or irregularity

in submission of daily reports."

Since the respondent had submitted a report that he

had visited Dr. Singla on 31.8.1989 which was obviously

false as Dr. Singla had already been killed by the

terrorists on 7th of August, 1989, a charge-sheet for the

misconduct, specified in Rule 14, was issued to him on

23.12.1989 on the basis of which a departmental enquiry was

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held against the respondent which was completed on 18.5.1990

and the findings recorded by the Enquiry officer were that

the charges levelled against him were fully proved. On the

basis of the above findings, the services of the respondent

were terminated by order dated 18.6.1990. This order was

challenged by the respondent in the departmental appeal on

26.6.1990 but the appeal was dismissed. The respondent

thereafter raised an industrial dispute which was referred

to the Labour Court, Ludhiana on 10.4.1991. While the

matter was pending before the Labour Court, the appellant

moved an application on 10.3.1995 that since the respondent

was only a Medical Representative, he was not covered by the

definition of "workman" as laid down in the Industrial

Disputes Act, 1947 and consequently the proceedings before

the Labour Court were wholly without jurisdiction. The

preliminary objection raised by the appellant was accepted

by the Labour Court which, by its Award dated 02.05.1995,

held that the respondent was not a "workman" and

consequently dismissed the reference. The respondent

challenged this Award before the Punjab & Haryana High Court

and by its judgment dated 12.08.1996, the High Court set

aside the Award and remanded the case back to the Labour

Court for deciding the matter afresh. On 22.12.1997, the

Labour Court decided another preliminary issue which was to

the effect "whether a fair and proper enquiry was held" and

it was held that fair and proper enquiry was not held and

the termination order passed by the appellant was wholly

illegal and void as it was found by the Labour Court that

the respondent, in spite of his request, was not allowed the

assistance of an advocate. It was further found that the

termination order was passed by an authority who was not the

appointing authority of the respondent and, therefore, it

was bad. The appellant, thereafter, filed Writ Petition

No.1010 of 1998 in the Punjab & Haryana High Court but the

High Court by its judgment dated 23.05.1998 dismissed the

Writ Petition. It is in these circumstances that the

present appeal has been filed in this Court.

We have heard the learned counsel for the parties.

Mr. Ashok Desai, learned senior counsel appearing on

behalf of the appellant has contended that since the Service

Rules applicable to the respondent specifically provided

that he can have the assistance of a co-representative in

the departmental enquiry, the Labour Court was wrong in

holding that the respondent was entitled to the assistance

of an advocate.

Learned counsel appearing on behalf of the respondent

has contended that though the Service Rules allow the

assistance of a co-representative in the departmental

enquiry, the respondent, nevertheless, was entitled to be

represented by a practising advocate in the departmental

proceedings as the questions involved in those proceedings

were complicated which could not be tackled by the

respondent as he was not aware of the basic principles of

legal proceedings or their implications, or, for that

matter, the manner in which those proceedings were to be

conducted.

The relevant Service Rules are quoted below:-

"16. a) The Representative against whom an enquiry

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has to be held shall be given a charge-sheet, clearly

setting forth the circumstances appearing against him and

requiring explanation. He shall be given an opportunity to

answer the charge and be permitted to be defended by a co-

Representative of his choice. Except for reasons to be

recorded in writing by an Officer holding the enquiry, the

Representative shall be permitted to produce witnesses in

his defence and to cross-examine witnesses on whose evidence

the charge rests. A concise summary of the evidence

produced by either side and the Representative's plea shall

be recorded.

b) A Representative against whom action is proposed to

be taken under Service Rule 16 may be suspended pending

enquiry. A Representative who is suspended shall be paid a

subsistence allowance during the period of suspension at the

rate of 50% of his salary. The order of suspension shall

take effect immediately on the receipt of the communication

to the Representative. If, as a result of the enquiry held,

or explanation tendered, it is decided not to take any

action against the Representative he shall be deemed to have

been on duty and shall be entitled to full salary for the

period of suspension.

c) In awarding punishment under the Service Rules, the

Manager shall take into account the gravity of the

misconduct, the previous record, if any, of the

Representative, any other extenuating or aggravating

circumstances that may exist.

d) If a Representative refuses to accept a charge-

sheet, order or any other communication issued in accordance

with the Service Rules and provided that the same is sent by

registered post acknowledgement due and if he refuses to

acknowledge the receipt of the communication and if he fails

to attend the enquiry, the enquiry shall be conducted ex-

parte and the Representative shall be responsible for the

consequences thereof."

These Rules indicate that a person against whom the

departmental proceedings have been initiated will be

entitled to avail of the assistance of a co-representative

of his choice in those proceedings.

In Kalindi and Ors. vs. Tata Locomotive &

Engineering Company Ltd., AIR 1960 SC 914 = 1960 (3) SCR

407, it was held that a workman against whom a departmental

enquiry is held by the Management has no right to be

represented at such enquiry by an outsider, not even by a

representative of his Union though the Management may in its

discretion allow the employee to avail of such assistance.

So also in Dunlop Rubber Company vs. Workmen, 1965 (2) SCR

139 = AIR 1965 SC 1392 = 1965 (1) LLJ 426, it was laid down

that an employee has no right to be represented in the

disciplinary proceedings by another person unless the

Service Rules specifically provided for the same. A

Three-Judge Bench of this Court in Crescent Dyes and

Chemicals Ltd. vs. Ram Naresh Tripathi, (1993) 2 SCC 115 =

1992 Suppl. (3) SCR 559, laid down that the right to be

represented in the departmental proceedings initiated

against a delinquent employee can be regulated or restricted

by the Management or by the Service Rules. It was held that

the right to be represented by an advocate in the

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departmental proceedings can be restricted and regulated by

statutes or by the Service Rules including the Standing

Orders, applicable to the employee concerned. The whole

case law was reviewed by this Court in Bharat Petroleum

Corporation Ltd. vs. Maharashtra Genl. Kamgar Union &

Ors., (1999) 1 SCC 626, and it was held that a delinquent

employee has no right to be represented by an advocate in

the departmental proceedings and that if a right to be

represented by a co-workman is given to him, the

departmental proceedings would not be bad only for the

reason that the assistance of an advocate was not provided

to him.

The finding of the Labour Court that the order of

termination was bad for the reason that it was not issued by

the Personnel Manager who was the appointing authority of

the respondent but was issued by the General Manager

(Marketing) who was not competent cannot be sustained as in

recording this finding, the Labour Court does not refer to

Service Rules which ought to have been done as it was

pointed out to him that the General Manager (Marketing) was

an Officer superior in rank to the Personnel Manager but the

Labour Court brushed aside the submission on the ground that

nothing was brought on record to indicate that the General

Manager (Marketing) was superior in rank. We refrain

ourselves from making any observation on the merit of this

question as the whole matter is being remanded for deciding

these questions afresh. We would only say that the Labour

Court should decide all the issues together and shall not

split the issues into preliminary or non-preliminary issues

so that the proceedings may come to an end at the earliest.

In view of the above, the Interim Award passed by the

Labour Court cannot be sustained nor can the judgment passed

by the High Court be upheld. The appeal is consequently

allowed. The Interim Award passed by the Labour Court as

upheld by the High Court is set aside and the Labour Court

is directed to decide the whole matter afresh in the light

of the observations made above and in accordance with law.