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Domestic Enquiry under Labour Law

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SERIAL NO. 1 2 3 TITLE TABLE OF CASES INTRODUCTION RESEARCH METHODOLOGY CHAPTER 1 CHAPTER 2 CHAPTER 3 CONCLUSION BIBLIOGRAPHY 26 27 PAGE NO. 2 3 5

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TABLE OF CASES
1. Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377. 2. Baidhar Das v. The State and Ors, AIR 1970 Ori 320. 3. Bata Shoe Co. Ltd v. Ganguly, (1961) 1 LLJ 303. 4. Brooke Bond India Ltd. v. Subbaraman, (1961) 2 LLJ 417 (SC). 5. Cipla Ltd v. Ripu Daman Bhanot (1999) 4 SCC 188. 6. CL Subramanyan v. Collector of Customs, Cochin, AIR 1975 SC 951. 7. consumer Education and Research Centre v. UOI, (1995) 3 SCC 42. 8. Crescent Dyes and Chemicals Ltd v. Ram Naresh Triadic, 1993 (66) FLR 537 (SC).

9. Dunlop Rubber Co. (I) Ltd v. Workmen, AIR 1965 SC 1392. 10. Firestone Rubber Co. v. Its workmen, 11. G.Nageshwar Rao v. A.P. State Road Transport Corporation, AIR 1959 SC 308. 12. Kharda & Co. Ltd v. Its Workmen, (1963) 2 LLJ 452. 13. Kraipak v. Union of India, AIR 1970 SC 150. 14. N.Kalindi v. Telco, AIR 1960 SC 914. 15. Nitya Ranjan v. State, AIR 1962 Orissa 78. 16. Pett v. Greyhound Racing Association Ltd., (1968) 2 All E.R. 545. 17. Photographic Co. Ltd v. Saumitra Mohan Kumar, (1984) 1 LLJ 471. 18. T.Muniswami v. State of Mysore, (1963) 3 LLJ 694. 19. The Board of Trustees of the Port of Bombay v. Kumar R. Nadkarni, 1983 (1) LLJ 1.

INTRODUCTION Take away all our money, our great work, our entire establishment, but leave our discipline and organization, and in a few years I shall have re-established myelf.[1] Discipline, indeed is the very basis of a well organized establishment and the management must take interest in upholding this. However, the power to supervise this discipline should not be used as a garb to arbitrarily dismiss or punish a workman. Every establishment is expected to maintain Model Standing Orders or Standard Standing Orders which lay down the bye laws of the industry including does dealing with misconduct and discipline. With the growing importance of the basic tenets of human rights and equality and fairness for all, law has made it necessary for an employer to work in a just and fair manner manner towards its workers knowing that it is the weaker party in industrial relations. It for this purpose that courts have now mandated employers to hold internal enquiries when misconduct or some other form of indiscipline has occurred in the establishment. These enquiries mainly give an opportunity to the worker to explain himself and defend himself from arbitrary punishment if his is innocent. Further the law mandates that such disciplinary proceedings are very crucial for a worker who has his livelihood and dignity at stake. Thus it is expected of employers to carry out these enquiries in accordance with the principles of

natural justice. However, there exists a big controversy here as to the right of a worker to be represented by an advocate at such enquiries to ensure smooth and efficacious running of such enquiry. One needs to see whether such a right is a basic essential of natural justice or whether such a right would only take away the informal atmosphere of a domestic enquiry. In order to answer these questions the researcher will take the held of various judicial pronouncements and other legal dimensions.

RESEARCH METHODOLOGY AIMS AND OBJECTIVES: The aim of this project is to understand what is a domestic enquiry and what is its status in law. Further researcher will examine that whether such enquiries must allow the right of representation to a delinquent worker. RESEARCH QUESTIONS:
y y y y

What is a domestic enquiry and how did it come about? What is the importance of such an enquiry and what is the status of such enquiries? Can the employer allow the workman the right to be represented by an advocate in such enquiries? Is the right of representation a statutory right of the worker and can principles of natural justice be dispensed with in regard to such a right?

SCOPE AND LIMITATIONS: The scope of this project is to understand whether a delinquent worker has a right to be represented by an advocate in domestic enquiries and whether the principles of natural justice can over ride the bye laws of an establishment to achieve this purpose. Due to lack of material on the subject, the researcher has excessively used the medium of case law to come to certain conclusions in this paper. METHOD OF WRITING: The researcher has used both a descriptive and analytical method of writing in order to understand the issues involved in this subject better. Also the

researcher has taken the help of judicial decisions in reiterating her views on the subject. MODE OF CITATION: A uniform mode of citation has been followed throughout this project. SOURCES OF DATA : The researcher has used secondary sources in order to obtain sufficient data for this project, namely, books, articles and the internet. CHAPTERISATION: Chapter 1: This chapter deals with the meaning of a domestic enquiry, how did it find its place in law and what are the procedures to be followed in such enquiries. Chapter 2: This chapter deals with the right of representation as laid down in law and when can this right be invoked and under what circumstances. Chapter 3: this chapter is an analysis of the previous two chapters. It deals with the debate whether a workman has a right of representation in domestic enquiries and whether the principles of natural justice will be violated if such a right is not given.

CHAPTER 1 DISCIPLINARY ACTION: AN INTRODUCTION Background: Most of Labour Law is judge made law. The Law relating to domestic enquiry particularly, is mostly judge made. This is further argued by the fact that there is no statutory provision which lays down that an enquiry must be held before punishment for misconduct, that principles of natural justice must be followed in such enquiries, that the tribunal cant interfere with the findings of the enquiry officer, etc.[2] What is a domestic enquiry: An enquiry held by the management against its employees for certain acts of alleged misconduct is called a Domestic enquiry[3]. Domestic enquiry is when such fact-finding enquiries are conducted in factories, industrial establishments

etc, of a private sector. Such enquiries if carried out against a Government Servant who is governed by the CCS (CCA) Rules, 1965, it is known as Departmental Inquiry.[4] Today it has become the law that no punishment for misconduct can be given to an employee without first of all, proving that act and secondly, without giving him a reasonable opportunity to defend himself in a proper domestic enquiry.[5] The purpose and importance of such an enquiry is that in an age of economic growth and liberalization, society requires industrial peace so that production may not be hampered. By providing for such an enquiry a great deal of arbitrariness and consequential grievance and unrest is avoided. Following this reasoning, enquiries against temporary workmen must also be held giving him opportunity to defend himself and cross-examining the witnesses of the employer, be fore he is punished.[6] A domestic enquiry is different from a preliminary enquiry. The sole object of a preliminary enquiry is to find out whether a prima facie case has been made out against the worker or not. On the other hand, a domestic enquiry is concerned with determining whether charges leveled against the workers are established or not. Further, the report of preliminary enquiry serves the basis of framing charges against the worker, while in the case of a domestic enquiry, the report helps determine the nature of punishment to be inflicted upon the workman who is found guilty.[7] Lastly, the preliminary enquiry need not confer to any rules and principles, whereas a domestic enquiry is subject to the principles of natural justice and the procedure laid down by the courts in their judicial decisions.[8] When an enquiry is invoked: For an enquiry to be initiated there must be a misconduct on the part of the employee which the employer has complained against.[9] The Model Standing Orders under the Industrial (Standing Orders) Act, 1946 provides for disciplinary action for misconduct and gives a list of acts which can be regarded as misconduct.[10]Further the employee must be in service of the employer to have an enquiry proceeding against him. Once an employee has ceased to be in service, the employer cannot call for such enquiry proceedings against him.[11] Procedure of Enquiry:

All establishments whether they have Standing or Orders or they follow the Model Standing Orders must necessarily follow certain procedural formalities before any punishment is awarded. This is laid down in clause 25 of the Model Standing orders. Apart from this since there is no set law as regards disciplinary proceedings, most procedures have been deduced from various legal judgments. The procedure can be divided into the following steps:
y y y y y

Framing and issuing of a chargesheet; Enquiry proceedings; Findings; Decision; Service of the Order.

Chargesheet: Once an employer feels there has been a misconduct and proceeds to carry out disciplinary action against him, the first thing an employer must do is issue a charge-sheet to the employee. It is at this point that a domestic enquiry commences. The object of a charge-sheet stems from the principles of natural justice that a person charged with an offence should know his guilt and should get an opportunity to explain himself.[12] After all the formalities of receiving the charge-sheet is fulfilled the next step is the enquiry proceeding. Enquiry Proceeding: Domestic enquiries do not apply in a situation where the employee admits the charges leveled against him.[13] Domestic enquiry proceedings are quasijudicial in nature. This means they are not totally judicial, and it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some act in exercise of its executive powers.[14] In such proceedings, the law requires that domestic tribunals should observe rules of natural justice if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a court of law.[15] In the first step, the explanation given by the workman must be considered. If this explanation is unsatisfactory, a notice giving the details of the upcoming enquiry along with the name of the presiding officer will be served on the worker.[16]

The employee has a right to be represented by his co-worker during the proceedings, and on the discretion of the employer may also be represented by the union representative.[17] Following this there will be examination and cross examination of prosecution and defence witnesses and the evidence deduced from this shall be recorded.[18] The examination of witnesses is done in a rather technical manner, whereby witnesses are to be examined one by one as in a court of law, and they should not be allowed to overhear the evidence given by the previous witness. The signature of the witness should be obtained at the conclusion of evidence or incase the evidence is being interpreted to the employee, the signature of such interpreter.[19] At the end, the enquiry officer/presiding officer should sign the evidence of subsequent witnesses. The enquiry should be conducted with speed and efficiency. As far as possible, the enquiry should be concluded in one sitting. However, if the proceedings protact it may be adjourned to the next convenient date. In any case, the enquiry should not be postponed for a long period and if it does so then suitable endorsements must be given with reasons for such delay. However, keeping in mind the purpose of such enquiries, on should avoid delay as it may effect the income of the workman seriously and may hamper the proper working of the establishment as the management will be involved in such proceedings. Findings: On completion of the enquiry, it is the duty of the enquiry officer to submit a report[20] containing his findings and the reasons therewith to the authorized authority to take disciplinary action. Findings without basis or perverse findings should not be recorded. The findings should be signed by the enquiry officer. It must be noted that the enquiry officer should not recommend any punishment or make any other recommendation in his findings.[21] Decision: The higher management such as works manager, general manager or director shall consider the findings and if the workman seems guilty to them, they shall award appropriate punishment in accordance with the standing orders.[22] No punishment can be given on any grounds not stated in a charge-sheet. This

again follows from the basic principles of the criminal procedure laid down in law. In awarding punishment, the fundamental principle is that punishment should be in proportion with the nature and gravity of the punishment. However, where the standing orders in the establishment provide a particular type of punishment for a specific act of misconduct, the same shall be strictly followed. Service of order: Any order of punishment is required to be sent expeditiously to the employee in writing which then completes the proceedings of the enquiry. The letter should make a reference to the charge-sheet, the enquiry held, the findings of the enquiry officer, the decision and the date from which the punishment is to be effective. These procedural aspects will vary in a case where approval of a conciliation officer, court or tribunal is necessary for effecting the punishment, as laid down in S.33 of the Industrial Disputes Act. CHAPTER 2 REPRESENTATION BEFORE THE TRIBUNAL Previously we have seen the procedural aspects of a domestic enquiry. An enquiry is mostly carried out on the basis of the rules laid down in the standing orders. If there are no rules then the principles of natural justice should be followed and. In any case the enquiry officer should always keep in mind that the proceeding should be carried out properly without any arbitrariness and the proceeding being between two unequal parties there should fair opportunity for both parties. It is in the light of this that the question of representation arises. Can a worker demand a representation by a lawyer as a matter of right? The right to be represented through an advocate or an agent can be restricted or controlled by statutes, rules, regulations or standing orders.[23] Further it has often been stated that if Orders did not provide such representation, that would not in anyway vitiate the proceedings.[24] Even the Supreme Court on a number of occasions have persisted with the view that representation is not a matter of right to the employee. In the case of N.Kalindi v. Telco,[25] the Supreme Court said that one must not forget that firstly these domestic enquiries are not enquiries in the court of law, and in

such enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not fall to be considered. Further straight forward questioning which a person of fair intelligence and knowledge of conditions prevailing in the Industry will be able to do and will ordinarily help to elicit the truth. The court also pointed out here that it may happen that the accused workman will be best suited, and able to cross-examine the witnesses who have spoken against him and to examine witnesses in his favour. This point of view was further reiterated by the Court in Brooke Bond India Ltd. v. Subbaraman,[26] in this the employer proceeded to hold an enquiry against two of its workmen, one of whom demanded to be represented at the enquiry by his counsel and the other by an outsider of his choice. The enquiry officer refused them such permission, but offered them representation by a member of the union. Both workmen refused and withdrew from the enquiry, after which the enquiry was carried out ex-parte and the management decided to dismiss the workers. On appeal to the Supreme Court, it was held that the enquiry officer had done everything which he was required to do under the law and the enquiry carried out by the manager was regular and there was need of further interference. Where services of an advocate cannot be dispensed with: However there are certain circumstances which warrants the appearance of an advocate and in fact some courts have said, that in such circumstances if the opportunity is not given to the worker, this would amount to unfair labour practices and a violation of natural justice. The circumstances are as follows: Where presenting officer is a lawyer: In the case of CL Subramanyan v. Collector of Customs, Cochin,[27] a trained prosecutor of the status of a high police official was appointed as presentation officer and the request of a delinquent to engage a lawyer of his choice to represent and defend him was rejected. It must be kept in mind that the officer was not only a legal practitioner but a trained public prosecutor. Further in this case the Government service rules gave the right to the government servant to be represented by a lawyer. Thus here the denial of the help of a lawyer vitiated the enquiry. The basic point here is that, the enquiry/presiding officer is a person chosen by the management, in light of this there already exists a fear that the enquiry officer might be bias towards the management who appointed him. In this

scenario, if the officer is also a highly qualified legal personnel, he may proceed with the same technicality as that of a court of law and this may make it difficult for the workman to follow the proceedings and to put up a sound defence. When employer is represented by legally trained prosecuter: Wherein an enquiry before the domestic tribunal, the delinquent employee is pitted against a legally trained mind refusal to grant him permission to appear through an advocate would amount to denial of a reasonable request and violation of essential principles of natural justice. This was reiterated by the Court in The Board of Trustees of the Port of Bombay v. Kumar R. Nadkarni,[28] where it said that apart from the provisions of laws, it is one of the basic principles of natural justice that the enquiry should be fair and impartial. Even if there is no provision in the Standing Orders or in law, wherein an enquiry before the domestic tribunal, the delinquent employee 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. Following from the above decision, where the employer nominates his legal officer and adviser as a presenting-cum-prosecuting officers and the delinquent worker is put up against such legally trained personnel, it is essential to allow the delinquent employee to be represented by a legal practitioner. Further if the rules put no such restrictions then it would be in the best interest of justice to allow representation.[29] When provisions made by the service rules: Where the service rules confer discretion in the enquiry officer or the employer to permit the employee to be represented by a lawyer, it is justifiable and could be then examined by the court if the employee did not get the opportunity to exercise the discretion.[30] One case to make this situation clear is where the employer nominated a police inspector of the Anti-corruption Department, who is specially trained in conducting prosecution, to conduct the enquiry and the right of representation by a lawyer was denied to the employee, it was held it violated the principles of natural justice.[31]

In case of a government servant, the disciplinary authority decides whether it should sanction the right to allow the employee to engage a lawyer, on the basis of the facts and circumstances. Presentation Officer having adequate legal knowledge: The presentation officer need not be a lawyer, for the delinquent to insist on having an advocate represent him. Its enough if the presenting officer has a sufficient knowledge of law and has been trained in the techniques of a disciplinary proceedings. For example, where the presenting officer is a CBI inspector, this situation is enough to warrant the services of a lawyer.[32] Other circumstances: Firstly, when a joint enquiry against two Government servants is being conducted and if the department has appointed a presenting officer and if the co-delinquent had an officer, to defend him, fair play and justice demands that the enquiry officer should have enquired from the delinquent employee whether he would like to engage someone to defend him. Also where the facts are complicated and the gravity of charges are high and the employee is not educated or skilled enough to handle such situations then a lawyer maybe engaged to defend him. In one case because of the gravity of charges being investigated in the domestic enquiry (fraud and forgery) and if such charges are tried in a criminal court, the accused would have a right to be represented, the delinquent was allowed to be represented by a lawyer.[33] However courts, have given varying decisions in this regard and in the next chapter the researcher will decide the need of a lawyer in domestic proceedings or whether they are a mere nuisance to such internal proceedings. As seen above the general principle of the right of representation to be exercised by the workman depends upon the discretion of the enquiry officer but such discretion is only to be exercised in peculiar and pressing situations. As seen above in certain circumstances where it seems that grave injustice will be done, the enquiry officer may allow the right of representation. However, this judgment will from case to case as per the circumstances and nuances involved. Besides this the said right also depends on the standing orders or service rules. If such a right is not recognized in the standing order, such refusal does not vitiate a proceeding.[34] A proceeding is vitiated when a

workman is unable to defend himself, either because he is illiterate[35] or because he is unable to understand the complexities of the case or for other reasons. However, in all such situations the court does not vitiate proceedings. If it is seen that though representation was not allowed, yet there was no hint of bias proceedings or arbitrary action, then such will not be set aside. Thus we see that there is no precedent set in this respect and having a fair idea of the existing situation it is left to one, to understand the best possible solution to this and therefore in the next segment, the researcher has aimed at analyzing the existing trend. and whether it is fair and just CHAPTER 3 THE RIGHT OF A FAIR AND JUST TRIAL A Case against representation: It is well understood that a domestic enquiry is an internal proceeding and not one in a court of law. Further very simple questions are asked in these proceedings as the object of this enquiry is only to see whether certain misconducts were committed by the workman or not. Further in the Telco case it was argued that the questions are simple enough that a person of fair intelligence and knowledge of conditions prevailing in the industry would be able to do.[36] Further the involvement of lawyers, it is argued will necessarily make the proceedings more technical and this will detract from the informality of proceedings proceedings, thereby, impeding smooth and expeditious settlement.[37] However one cannot blame lawyers for bringing their legal training and experience to the aid and benefit of their clients as it is well established that labour disputes necessarily entails two unequal parties. It is worth mentioning that even under the provisions of the industrial Disputes Act the appearance of a legal practitioner is totally prohibited in conciliatory proceedings and restricted as far as adjudication proceedings go. It must therefore, not be in consonance with the policy to allow an advocate to participate in purely fact finding proceedings before domestic tribunal and allowing the proceedings to be influenced by strict rules of evidence.[38] In this respect, it is further argued that principle of natural justice would be complied with if the delinquent workman was allowed to be represented by a co-worker of his choice. However such a situation is not a viable option. The fight should be between equals and a co-worker may possess the same disabilities as that of

the delinquent workman and may not have the sufficient qualifications and knowledge. This then brings us to deeper issues of industrial relations and inequality of bargaining power of the workmen and how the law and the legislature have tried to bridge the gap or atleast make amends. Natural justice in labour laws: Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. In Kraipak v. Union of India,[39] the Court observed, the aim of rules of natural justice is to secure justice or to put in negatively to prevent miscarriage of justice. Further these rules of natural justice can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement. The point is that if the Courts can read statutory provisions consistently with the principles of natural justice, then it should do so because it is presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. However, if a statutory provision, either specifically or by necessary implication excludes the application of any of the rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authorities.[40] Thus this case held that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily and unreasonably. Further in one case the court held that though the right to employment is not a fundamental right, but after employment to a post or office, be it under the state, its instrumentality, juristic person or private entrepreneur, an employee must be dealt with as per public element and in public interest assuring him equality under Art.14 of the Constitution and all concomitant rights arising from it.[41] Thus proving the need of upholding principles of natural justice so that everyone person can be treated equally. Thus keeping these ideas in mind, we shall now embark on a discussion of the legality and importance of a lawyer representing a delinquent workman in enquiry proceedings. Appearance of advocates: A fair principle

Up to this point we have seen that case law and authors have said that a workman has no right to be represented by an advocate in domestic enquiries and the opposite view is only an exception culled out in pressing situations. However with the strengthening of the principles of natural justice and the agreement of courts that such enquiries are quasi-judicial in nature, therefore one must necessarily pass judgment in fairness and good faith. India is a developing country and industrialization is at its peak. However, though there is growth in one side, the fact remains that the mass of Indian people are poor and illiterate and most of the workers uneducated and unskilled. Further though Trade Unions have been formed to strengthen workers, with the multiplicity of Trade Unions this job becomes impossible as most of their time is spent in inter union rivalries etc and thus the difficulty of putting up a strong front before the management. In this background we see that an employee is at a disadvantageous and unequal position in industrial relations. Therefore when a situation like a domestic enquiry comes up, the employee must get help and guidance and opportunity, not excessively but to a reasonable extent. A regular worker in an industry has not much skill let alone legal skills. As seen in the first chapter, a domestic enquiry involves technicality almost equal to that of a court of law. How is a worker supposed to carry out examinations and lead evidence, etc. He may not be aware of the formalities required. In such a background the expertise of an advocate could help in dealing with the enquiry properly and fairly. Following this, in the case of Firestone Rubber Co. v. Its workmen[42], the court held that if a proceeding is set aside by the presiding officer or if the worker feels there has been injustice in the finding, he may approach the Labour Court for redressal. At this stage the Court may allow the management to lead fresh evidence to explain why the proceedings were not conducted properly. Here we see that the management gets another opportunity to fix its wrongs, however if a worker had done made a mistake or had not been able to present his evidence properly he get no second change. Thus it would be important then to allow the workman to be represented by a lawyer who would be able to understand the nuances of the case and ensure a fair trial. Further, once the matter goes to the Labour Court, there is scope for challenging the award of

the Court by the means of a writ petition and this may lead to a long drawn process, which the workman may not be able to endure.[43] In Nitya Ranjan v. State,[44] the court held that though legal assistance is generally prohibited in domestic enquiry, yet in certain circumstances where there is complexity in facts, volumes of evidence, the educational attainments and experience of the delinquent workman etc. And these factors show that without legal assistance he may not be able to establish his innocence, then the rule can be broken and the exception of allowing an advocate be brought in. Infact the court said that in such circumstances, denial of legal assistance may be equivalent to denial of reasonable opportunity and the entire proceeding can be quashed. Here again see the assertion of principles of natural justice which demands fair trial and reasonable opportunity to every person. This was further reiterated in another court where the charges against the delinquent were of falsification of accounts, misappropriation of Government money, acceptance of illegal gratification etc. there were as many as 93 witnesses examined and a large number of documents presented. In fact the enquiry went on for three years with three enquiry officers succeeding one another. In the facts and circumstances of the case it was seen that the disciplinary authority acted contrary to A.311(2) of the Constitution in denying the representation of the petitioner by a lawyer at the enquiry and thus deprived him of the reasonable opportunity granted to a public servant. Thus the proceedings were vitiated.[45] Also a counter argument can be leveled against those who argue that since it is domestic enquiry outsiders should not come and disturb the informal atmosphere. In fact since it is considered a purely internal matter, care must always be taken to see that the domestic enquiry is not reduced to mere empty formalities.[46] Instead it should be conducted with scrupulous regard to the requirements of natural justice of which the purpose to safeguard the position of the person is against whom the domestic enquiry is being held so that he maybe able to meet the charges leveled against him properly.[47] Further, as pointed out earlier when a workman is pitted against a legally trained mind or the presenting officer is a legal practitioner or someone who has knowledge of the law, then it is reasonable and in keeping with natural justice to allow representation of worker by an advocate to defend him in the

domestic enquiry. What is the rationale behind this? The idea of the enquiry is to see whether there is a charge made out and to give an opportunity to the workman to explain and defend himself. This is because every person has the right to employment and livelihood. Though this may not be a fundamental right under Art.19(1) yet it has often been read into the right to life. In consumer Education and Research Centre v. UOI,[48] it was said that the expression life in Art.21 is wider to include right to livelihood, better standard of living, hygienic conditions in the work place. And a natural corollary to achieveing this is to have the right to employment so that every person can live in dignity and create a liveable atmosphere for himself.[49] In this background is it constitutional and further still humane to just dismiss a worker, making him lose his work without giving him a fair and reasonable opportunity to defend himself. Lord Denning had taken this view in England that where a mans reputation or livelihood is at stake he should have a right of representation.[50] Besides the fairness and humanitarian angle to this, there are other reasons which make the appearance of an advocate in an enquiry important. Firstly, if an advocate is present at the enquiry there is more chances that the proceedings will be held properly as the legal practitioner will see to the efficacy of the proceedings and see whether all the formalities are fulfilled. Further there is fear that since the presiding officer is selected by the management it self, there may be bias and unfair practices on its part. Secondly, if u allow an advocate to present the case of a delinquent workman, this would elevate the status of the proceedings as it will be looked at with more seriousness and it will be believed that the appearance of the advocate will make the proceedings more technical and formal to the extent of fair and just proceedings. Thirdly, if there is an advocate arguing the case, it is most likely that it would keep the legal aspects in mind, thus avoiding arbitrary enquiries and even more arbitrary findings. This will bring faith in the domestic enquiry and a will to solve the issue quickly. This will avoid congestion of cases at the Labour Court and Industrial Tribunal. Lastly, once you say that the principles of natural justice must be followed, this necessarily entails that the proper procedures of law must be complied with

leading to the natural conclusion that the procedures laid down under the Civil Procedure Code is best suited to be followed as far as procedure goes. Thus, once the CPC is brought in, the procedure and charges become difficult for the worker to understand and therefore, the representation of such workman through an advocate would be advisable and fair. Changing face of the law: However, in contemporary times perceptions and views have changed to support the representation of a workman by an advocate. It has often been argued that an Enquiry Officer performs quasi- judicial functions on account of which principles of natural justice are applicable, then they are applicable not because they are provided in the standing orders or service rules, but because they are implicit in the discharge of quasi-judicial functions. Thus often now even if standing orders provide something contrary, nevertheless, principles of natural justice would apply.[51] Under the old concept of free economic system the employer used to enjoy the right to hire and fire his workmen. Though the right to hire still belongs to the employer, the right of fire has in recent times been circumscribed by several limitations.[52] Today, whenever a question of interpreting a labour statute comes up, the court are reluctant to give an interpretation which would be prejudicial to the rights or welfare of labour Recently the Calcutta High Court in India Photographic Co. Ltd v. Saumitra Mohan Kumar,[53] held that though the court should discourage involvement of legal practitioner in simple domestic enquiries like disciplinary enquiries for avoiding delay, yet the Court cannot ignore the necessity of such representation in exceptional cases where refusal of such representation would defeat the purpose of the enquiry itself. The Court did not lay down any specific rules in any case but said that the issue should be left for such consideration as the exigencies of facts demand in individual cases. CONCLUSION The above chapter re inforces the fact that a person who is entitled to appear in person to defend himself before a domestic tribunal is also entitled, in the absence of an express provision to be represented by a lawyer. It would be contrary to principles of natural justice to allow one side to be represented by a

lawyer or that the presiding officer maybe well versed in the legal practice. In considering whether natural justice implies a right to representation, one must recall that natural justice demands only minimum safeguards of fair adjudication, and not ideal standards, further as discussed above these principles only supplement and not overrule any existing law in practice. However, 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. Development of case law on implied rights of legal representation in nonstatutory areas should, therefore, be guided by a realistic appraisal of the interests of the person claiming it, as well as of the interests of the organization to which he belongs. In fact in the recent past we have seen the situation is changing and the right to legal representation is slowly finding its way into such disciplinary proceedings as it now seen as one of the tools of a fair and just enquiry. This stems from the fact there is more awareness today as to ones rights and liabilities and issues of right to employment and livelihood as a corollary to human rights is no more a talk of the privileged, but is now something embedded in every human being. Also after liberalization courts have started showing concern towards the worker population and is now reluctant to pass judgment which may harm their dignity and position in society. Therefore in the light of all this, the right of representation of workman by a legal practitioner is only a small step in ensuring justice and fairness and thus courts should keep this is mind when making judicial pronouncements. BIBLIOGRAPHY Articles:
1. D.R.K. Rao, Domestic Enquiry Vs. Departmental Inquiry, Labour Law Journal, 2005-I LLJ at 49. 2. E.M.Rao, Industrial jurisprudence (New Delhi; Lexis Nexis, 2004) 3. P.Naresh Kumar, Law on representation through legal practitioners before Labour Courts and Tribunals, Labour Law Journal (Articles), 2003- 1 LLJ at 1017.

4. Shantimal Jain, Representation before Domestic Tribunal, Labour and Industrial Cases, 1987 Lab.I.C. Jour 4 (1) 5. Vijai Shanker, Disciplinary Action & Natural Justice, Labour Law Journal, 1971- 1 LLJ at (vi- xvii).

Books:
1. P.L.Malik, Industrial Law,16th ed (Lucknow; Eastern Book Co., 1992). 2. A.S.Ramachandra Rao, Law relating to Departmental Enquiries for Government Servants, 2nd ed (Delhi; Universal Law Publishing Co. Pvt. Ltd,2003). 3. L.C.Malhotra, Dismissal, Discharge, Term of Service and Punishment, at 103. 4. O.p.Malhotra, at 1054. 5. Markanday Katju, Domestic Enquiry (Bombay; N.M.Tripathi Pvt Ltd, 1984). 6. H.L.Kumar, Misconducts, Metropolitan, 1992). 7. Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd ed (Allahabad; Law Publishing House, 1997). [1] Vijai Shanker, Disciplinary Action & Natural Justice, Labour Law Journal, 1 LLJ 1971, (vi- xvii) Chargesheets and Enquiries, 5th ed (New Delhi;

[2] Markanday Katju, Domestic Enquiry (Bombay; N.M.Tripathi Pvt Ltd, 1984) at 4. [3] Find foot note [4] D.R.K. Rao, Domestic Enquiry Vs. Departmental Inquiry, Labour Law Journal, 2005-I LLJ at 49. [5] Kharda & Co. Ltd v. Its Workmen, 1963-II LLJ 452. [6] The courts have gone to the extent of saying such enquiries must also be held in case of probationers. Even if there is an express term in the letter of appointment of a probationer that his service can be terminated at any time during the period of probation, the Tribunal can still interfere if the termination is capricious and unjustified. See, Supra note 2, at 6. [7] A, at 227. [8] A, at 228. [9] This basically means that if termination is on the basis of ill-health or loss of confidence, etc , then no enquiry will be required. See, Supra note 2, at 7. [10] A, at 228.

[11] Supra note 2, at 8. [12] The charge-sheet should be personally served on the concerned workman in the presence of atleast two witnesses. If the workman is unavailable or refuses to accept it, it shall then be sent to his last known address. The chargesheet is deemed to be properly served if the letter is delivered to the workman or returned unaccepted. See, A at 230. In the event of non-delivery of registered letter, the charge-sheet has to be published in a local newspaper with wide circulation mentioning the name and other particulars of the concerned workman. This was observed by the Supreme Court in Bata Shoe Co. Ltd v. Ganguly, (1961) 1 LLJ 303. [13] Other situation where enquiry is not necessary is where the termination is in the form of retrenchment, transfer or closure of the establishment. Also an enquiry will not proceed where termination is in accordance with standing orders (discharge simpliciter, loss of confidence, reasons not to be disclosed in the interest of the company. [14] G.Nageshwar Rao v. A.P. State Road Transport Corporation, AIR 1959 SC 308. [15] A, at 231. [16] A, 232. [17] N.Kalindi v. Telco, AIR 1960 SC 914. [18] The establishments witnesses are to be examined first in support of the charges and afterwards the accused workman should be asked to examine his witnesses, if any. If the accused workman has no evidence to produce or refuses to name witnesses in his favour, such matter should be recorded by the enquiry officer. See, Supra note 2, at 12. [19] The interpreter should sigh an endorsement to the effect that the evidence as recorded by the enquiry officer was interpreted to the accused employee to his entire satisfaction. See, A, at 232, [20] the report should contain all the facts and circumstances of the case, evidences recorded at the enquiry, charges as well as the explanations given to them. It is judgment of the case heard by him. [21] A, at 233.

[22] The following punishments are generally imposed on the employees depending upon the gravity of the misconduct committed by them: (i) warning; (ii) Fine; (iii) withholding or stoppage of increments; (iv) Demotion or reduction in rank; (v) Suspension; (vi) Discharge; (vii) Dismissal. The first five are minor punishments, while the last two are major ones. [23] Crescent Dyes and Chemicals Ltd v. Ram Naresh Tripathi, 1993 (66) FLR 537 (SC). The workman, Ram Naresh Tripathi, was charge-sheeted for misconduct. A domestic enquiry was ordered to look into the alleged acts of misconduct of the delinquent. The delinquent requested the enquiry officer to permit him to be defended by one Talraja who claimed to be an office bearer of the Bombay Mazdoor Union of which the delinquent was a member. but the enquiry officer did not permit the delinquent to be represented and defended by the said Talraja since he was not a member of the recognised union or the unrecognised union functioning in the employers establishment. Thereupon the delinquent did not participate in the enquiry and the enquiry officer concluded the enquiry ex-parte. That led to the ultimate dismissal of the delinquent by an order dated January 28, 1981. The delinquent thereupon filed a complaint in the Labour Court, making a grievance that the employer was guilty of unfair labour practice enumerated at Item 1(f) of Schedule IV to the Act, in that, he was not allowed to be defended by a person of his own choice in violation of the principles of natural justice. In this case the question also came up as to whether a workman can be represented by an advocate. The Court held that since the standing orders permitted a representative to defend the workman, he should resort to such a course alone and the right to be represented by an advocate can be restricted and such a restriction would not vitiate the proceedings as a violation of principles of natural justice. [24] Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd ed (Allahabad; Law Publishing House, 1997) at 142.

IN HIGH COURT OF DELHI : NEW DELHI AT NEW DELHI. SUBJECT: LABOUR LAW

CW No. 1485 of 1979

Judgement reserved on: March 5, 2004

Judgement delivered on: March 17, 2004

Domestic Inquiry

Delhi Transport Corporation Indraprastha Estate, New Delhi Through Ms. Geeta Sharma, Advocate .........Petitioner

Versus

1.

N.L. Kakkar Presiding Officer Industrial Tribunal No.1 Room No.10, Ground Floor (Civil Wing), Tis Hazari Courts Building

Delhi

2.

Karan Singh Conductor Badge No.2650 Vill. & P.O. Kerala Delhi

Through

Mr. D.N. Vohra ,Ms. Rashmi B. Singh, Advocates ........Respondents

CORAM: HON'BLE MR. JUSTICE MADAN B. LOKUR

1. Whether the Reporters of local papers may be allowed to see the judgement? Yes

2. To be referred to Reporter or not?

Yes

3. Whether the judgement should be reported in the Digest? Yes

MADAN B. LOKUR, J.

1.

The Petitioner (DTC) is aggrieved by orders dated 25th April, 1977 and 11th July, 1979 passed by the Additional Industrial Tribunal and the Industrial Tribunal No.1 respectively in O.P. No.85 of 1974 being an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (the Act).

2.

The facts as they appear from the record are that on 4th May, 1972, two Assistant Traffic Inspectors Om Prakash and H.C. Dutta checked a DTC bus for ticketless travellers. Three ladies in a group, alighting from the bus after completing their journey from East Park Road to Fatehpuri, were found to be without tickets. On being asked, they stated that they had given a onerupee note to the conductor (Respondent/workman herein) who returned 40 paise to them, but did not issue any ticket. On being confronted, the conductor stated that the tickets were lying on the foot-board of the bus. These ladies were immediately taken to a Special Metropolitan Magistrate/Mobile Court for being challaned for ticketless travel. The learned MM passed the following order:-

"Heard the accused in detail. I am convinced that the accused paid the fare to the conductor but he did not issue the ticket properly. The accused is, therefore, acquitted."

3.

What seems to have transpired is that the fare payable by each lady was 25 paise and when the conductor saw the checking staff, he issued them tickets of 20 paise each. Two other passengers in the bus stated that the conductor threw these tickets on the floor of the bus. These tickets were seized by the checking staff and were found to be of inadequate denomination and not punched at the proper place. Since the fare was 25 paise each, the checking

staff asked the ladies to give another 15 paise to the conductor who then issued three more tickets of 5 paise each. A challan was then issued to the conductor and the checking staff prepared their report accordingly.

4.

On these broad facts, the conductor was issued a charge sheet on 4th September, 1972 containing the following allegations: "That on 4.5.72 you were conducting bus No.1675 of route No.25-X when the checking officials checked the tickets of the alighted passengers of your bus at Fatehpuri at about 10.55 hours. Three lady passengers in a group headed by Mrs. Tara Wati who had boarded your bus from East Park Road and from whom you had collected 60 paise as against the due fare of 75 paise alighted there without having been issued any tickets by you. You thus contravened the provisions of para 21(iv) of the Executive Instructions Duties of a Conductor and para 19(b) of the Standing Orders governing the conduct of DTC Employees."

5.

A domestic inquiry was held against the conductor, in which he was found guilty and subsequently awarded a punishment of removal from service on 14th August, 1974. The DTC moved an application under Section 33(2)(b) of the Act before the learned Tribunal seeking approval of their action.

6.

By the first impugned order, the learned Tribunal held that the domestic inquiry was vitiated. Two reasons were given for holding so: firstly, the evidence did not point to the guilt of the conductor and secondly, the two passengers who said they saw the conductor throwing tickets on the floor of the bus when the checking staff arrived, were not produced as witnesses before the enquiry officer.

7.

After holding the domestic inquiry to be vitiated, the learned Tribunal permitted DTC to lead evidence before it for proving the misconduct of the conductor. DTC examined the checking staff as its witnesses. The lady passengers were summoned as witnesses but were not available for evidence.

8.

The learned Tribunal weighed the evidence and concluded that DTC was not able to prove that the conductor did not issue the tickets. On the contrary, it was held that the conductor did issue tickets to the ladies. The learned Tribunal also held that the ladies were the best witnesses to state whether the conductor had issued tickets or not. Since they were not produced, no case was made out against the conductor. Accordingly, the application under Section 33(2)(b) of the Act was dismissed by the second impugned order.

9.

Challenging the correctness of the first impugned order, learned counsel for the Petitioner contended before me that the evidence on record, including the conclusion of the learned Magistrate, shows that even though tickets may have been issued by the conductor, the fact remains that they were not valid tickets for the journey since the fare was 25 paise per head but the tickets issued were for 20 paise each. Moreover, the tickets were not punched in the proper place and were not handed over to the ladies but were thrown on the floor of the bus when the checking staff arrived. According to learned counsel, it can hardly be said that the conductor had "issued tickets" to the ladies and the inquiry officer had correctly assessed the evidence. There was, therefore, no reason for the learned Tribunal to differ with the views of the inquiry officer. It was further submitted that the learned Tribunal was unduly influenced by the fact that the two passengers were not produced as witnesses.

10.

The second impugned order was challenged by learned counsel on similar grounds. It was alternatively contended that the Presiding Officer of the

learned Tribunal was not specifically empowered to deal with the case. However, in the view that I am taking, it is not necessary to deal with the alternative contention.

11.

Two issues arise in this case: the extent of interference permissible with the findings in a domestic inquiry and the necessity of passengers being produced as witnesses, that is to say, whether hearsay evidence can be accepted in a domestic inquiry.

12.

Both the aforesaid issues are squarely covered in favour of DTC by several decisions, including a leading decision of the Supreme Court and a Division Bench decision of this Court.

Passenger witnesses

13.

In a similar fact situation, a Full Bench of the Punjab & Haryana High Court in State of Haryana vs. Ram Chander 1976 (2) SLR 690 laid the foundation for its discussion in paragraph 3 of the Report. It was held that a domestic tribunal is not bound by the strict rules of evidence and can evolve its own procedure as long as it is in accordance with the principles of natural justice. It was said :

"The first question for consideration is, whether the evidence of the checkers as to what they were told by the passengers was not legal evidence in the domestic enquiry against the respondent. Time and again, it has been repeated by the Supreme Court that domestic tribunals in the absence of statutory guidance, have the right to regulate their own procedure and are also not bound by the strict rules of evidence. The rules of procedure and the rules of evidence observed in Courts are often misplaced in domestic enquiries. A Domestic tribunal whose procedure is not regulated by a

statute is free to adopt a procedure of its own so long as it conforms to principles of natural justice. It is equally free to receive evidence from whatever source if it is 'logically probative'."

14.

Thereafter, the Full Bench considered earlier decisions of the Supreme Court and also referred to cases from England to lay down the law in paragraph 4 of the Report with regard to the value to be attached to hearsay evidence. It was held :

"... ... where a bus is checked and it is found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses. A finding of guilt arrived at by him would not be based on pure hearsay. It would be based on (1) the evidence of the Checker that he found passengers travelling without tickets and (2) the statements made by the passengers to the checker at the time of checking. The second item of evidence alone would be hearsay but it would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot. In such a case, it cannot be said that the enquiry officer's findings are based on pure hearsay or hearsay of unreliable nature."

15.

The most important judgement on the subject is State of Haryana vs. Rattan Singh (1977) 2 SCC 491. The facts of that case are similar to the facts of the present case. What must be mentioned, however, is that in Rattan Singh the Civil Court declared the domestic inquiry a nullity. The appellate Court affirmed this conclusion and the High Court dismissed a second appeal. Yet, the Supreme Court entertained a petition for special leave to appeal and upset the conclusions of three Courts.

16. The contentions urged before the Supreme Court are also of some importance. They are:

(i)

None of the passengers travelling without tickets were examined in the domestic enquiry.

(ii)

The checking inspectors had violated a departmental instruction by not recording the statements of the passengers.

(iii)

The co-conductor in the bus had affirmed the innocence of the conductor.

17.

The Supreme Court held in paragraph 4 of the Report that a domestic inquiry can take into consideration all materials logically probative for a prudent mind and that there is no allergy to hearsay evidence, provided it has reasonable nexus and credibility. It was said that the passengers are not required to be chased and brought before the domestic tribunal.

18.

On the scope of permissible interference with the conclusions of a domestic inquiry, the Supreme Court said in the same paragraph that what has to be seen is whether there was some evidence or was it a case of no evidence. As long as there is some evidence, sufficiency thereof in proof of a finding by a domestic tribunal is beyond scrutiny. The Supreme Court found that there was some evidence before the inquiry officer and, therefore, the order passed in the domestic inquiry could not be held invalid.

19.

I think it is worth quoting the view of the Supreme Court as reflected in paragraph 4 of the Report. This passage really answers both the issues before me. This is what the Supreme Court says:

"It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgement vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the

respondent. Therefore, we are unable to hold that the order is invalid on that ground."

20.

With regard to the second contention relating to non-compliance of departmental instructions, the Supreme Court found them to be rules of prudence and not rules that bind so that their violation will not vitiate the exercise. Absence of written statements of the passengers (the statements were orally made) was explained by Supreme Court as being understandable given the psychology of the passengers, though not worthy of approval. But, it was held that merely because their statements were not recorded, it would not invalidate the order in the domestic inquiry.

21.

Finally, with regard to the third contention, the Supreme Court held that "reevaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal."

22.

Two facts are noteworthy in the decision of the Supreme Court. Firstly, the only evidence against the conductor was what was told by the passengers to the checking staff. The passengers did not enter the witness box, nor did they give written statements to the checking staff. Secondly, the coconductor supported the conductor and apparently entered the witness box. Yet the Supreme Court accepted the finding of the domestic inquiry and reversed the conclusion of three Courts.

23.

Soon after the decision of the Supreme Court in Rattan Singh, a Division Bench of this Court had occasion to deal with a similar situation, wherein again, both the issues before me had also arisen. In Delhi Transport Corporation vs. Presiding Officer, Additional Industrial Tribunal (1979) XVI DLT 220, the Division Bench noted two competing principles, that is, nonreviewability of a finding of fact based on evidence and violation of the rules of natural justice. The Division Bench laid down the law on page 224 of the

Report and then referred to and relied upon Rattan Singh in support of its conclusions. This is what the Division Bench said:

"The alleged violation of natural justice pre-supposes that it was necessary that the passenger witness should have been made available for cross examination. This assumption is baseless. Firstly, the notice by registered post sent to the witness was received back with the remark that the witness had left the address and the notice could not, therefore, be served on that address. This made it impossible for the Inquiry Officer to serve the passenger witness. Secondly, the question whether the hear-say evidence of the checking staff about the statement of the passenger should have been admitted in evidence by the Inquiry Officer because of the impossibility of enforcing his attendance which may arise in a suitable case did not arise in this case. Even when no such impossibility of enforcing the attendance of the passenger was proved the Supreme Court observed in State of Haryana and another v. Rattan Singh ......"

24.

On the question of interference with a finding of fact arrived at in a domestic inquiry, it was held : "Therefore, in the present case, the principle (sic) finding of fact of the Inquiry Officer which is based on some evidence independent of the written statement or oral evidence of the passenger witness is unassailable."

25.

On page 225 of the Report, the Division Bench made an important observation, which I think should be taken serious note of. It was said:

"We may take judicial notice of the fact that the checking of the conductors of the buses of the appellant is a salutary practice. Its effectiveness cannot be defeated by technicalities. When the misconduct is proved by the

common sense standards before the Inquiry Officer, legal ingenuity and technicalities should not be allowed to impugn the common sense findings and defeat the operation of the system of checking."

26.

The above Division Bench decision was followed by a learned Single Judge of this Court in Sultan Singh vs. Delhi Transport Corporation, 1987 I LLN 399. In that case, grant of approval under Section 33(2)(b) of the Act was challenged by the petitioner on the ground that the passenger witness who had given a statement against the petitioner was not examined and so the petitioner did not have any opportunity to cross-examine this witness and, therefore, the inquiry against him was vitiated. The learned Judge also referred to Mahinder Singh vs. Presiding Officer (CW No.136 of 1975 decided on 10th February 1979) and observed that in these cases, it had been held that:

"... ... even if the passenger witnesses are not examined and if there was enough other evidence to prove the misconduct of the employee the inquiry is not vitiated. In the present case also, there is a clear finding that the checking officers were examined and they gave evidence to prove the misconduct and the statement of the passenger was recorded in the presence of the petitioner. Thus, even if the statement of the passenger witness is held to be inadmissible since there was other evidence, the order cannot be held to be invalid."

27.

Shyam Sunder vs. Delhi Transport Corporation (CW No.922/76 decided on 5th February, 1996) dealt with an identical issue. In that case, the learned Single Judge referred to DTC vs. Presiding Officer (CW No.7/79 decided on 16th July, 1979), the Division Bench decision mentioned above and Rattan Singh and held that since the inquiry officer based his findings on the examination of the checking staff (who were also cross-examined), there was independent evidence to link the petitioner with the charges levelled

against him. Consequently, the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated.

28.

The learned Judge also held that: "It is settled law that this court is not competent and has no jurisdiction to reappraise the evidence on record and come to a different finding from that of the Enquiry Officer."

29.

It is quite clear that the consistent view of this Court over the last few decades has been that the non-production of passenger witnesses is not fatal to the domestic inquiry and that findings of fact arrived at in a domestic enquiry should not be interfered with so long they are based on some evidence. The value of that evidence and what weight is to be attached to it is within the jurisdiction of the tribunal.

Law laid down by some other High Courts.

30.

What is the view of some other High Courts? The view of the Karnataka High Court is clear from three Division Bench decisions. In Karnataka State Road Transport Corporation vs. Sathyanarayanan, 2003-II-LLJ 301, a conductor failed to issue tickets to a group of seven passengers despite collecting the fare from them. With a view to misappropriate the amount, he also closed the waybill. After a disciplinary enquiry, the conductor was found guilty and dismissed but the Labour Court held that the charge against the conductor was not established. A learned Single Judge upheld the view of the Labour Court. The Division Bench concluded that simply because the passengers, whose statements were recorded by the checking officials, were not examined in the domestic enquiry, it cannot be said that the evidentiary value of those statements is lost. It was also found that to cover up his

misdeeds, the conductor had closed the waybill. The Division Bench held that the misconduct by the conductor was proved.

31.

Similarly, in North West Karnataka Road Transport Corporation vs. K.S. Raghunathappa, 2003-II-LLJ 989, the allegation against the conductor was that he had not issued tickets to six passengers despite having collected the fare from them. After a disciplinary enquiry, he was dismissed from service. The Labour Court before whom an industrial dispute was raised held that the domestic enquiry was fair and proper but the charge against the conductor was not proved, inter alia, because none of the passengers were examined. The Division Bench rejected the reasoning of the Labour Court after relying upon Rattan Singh. It was also held that apart from the statement of the passengers, there was other material such as unpunched tickets, offence memo checking report etc.

32.

In North West Karnataka Road Transport Corporation vs. S.S. Poleshi, 2000 III CLR 203, the conductor of a bus had not issued tickets to some passengers despite taking the fare. Disciplinary proceedings were initiated against him and he was dismissed from service. He raised an industrial dispute and the Labour Court held that the charges against him were not proved because none of the passengers had been examined during the adjudication proceedings. A learned Single Judge upheld the view of the Labour Court. In appeal, the Division Bench relied upon Rattan Singh to set aside the order of the learned Single Judge and restored the penalty of dismissal from service.

33.

The view of the Bombay High Court is to be found in Pandurang Kashinath Wani vs. Divisional Controller, 1996-I-LLJ 540. In that case also, the conductor failed to issue tickets to some passengers despite having collected the fare from them. After a domestic enquiry, the conductor was dismissed from service and though the Labour Court held that the domestic enquiry was conducted fairly, the punishment of dismissal from service was found to be disproportionate.

34.

In a writ petition filed before the High Court, it was contended that the domestic enquiry was not fair because the passengers were not subjected to cross-examination.

35.

The High Court rejected the contention on the ground that the statement of the passengers was recorded in the presence of the conductor who made an endorsement at the foot of each statement and put his signatures. It was not as if the statement of the passengers was taken at the back of the conductor. Relying upon Rattan Singh, it was held that even though the passengers were not called at the domestic enquiry and permitted to be cross-examined, there was no violation of the principles of natural justice. Additionally, it was noted that the conductor was found in possession of sufficient stock of tickets in his money bag for which the explanation given by him was fanciful and unsatisfactory.

36.

The Madras High Court in Pandian Roadways Corporation Ltd. vs. Presiding Officer, 2000-II-LLJ 1593 also dealt with a case where the conductor did not issue tickets to some passengers despite having collected the fare from them. The statement of the passengers was recorded by the checking staff who was examined in the departmental enquiry held by the appellant. The conductor was dismissed from service but the Labour Court, upon an industrial dispute having been raised by the conductor, upheld the validity of the domestic inquiry but directed the reinstatement of the conductor on the ground that the punishment was excessive.

37.

Relying upon Rattan Singh, the Madras High Court came to the conclusion that it was not necessary to examine the passengers. In that case, however, there was a slight difference on facts inasmuch as the conductor admitted that he did not have time to complete the necessary paper work at the time of issuing the tickets. Based on this admission, as well as the evidence of the

checking inspector and the fact that the conductor had not completed the invoice, the Madras High Court interfered with the order of reinstatement and approved the dismissal of the conductor.

38.

The view of the Gujarat High Court is to be found in Gujarat State Road Transport Corporation vs. M.S. Patel, 1998 II CLR 473. In that case, the conductor of a bus did not issue tickets to two groups of passengers. The checking staff made a report after taking the statements of the passengers. In a departmental enquiry, the conductor was held guilty of misconduct and dismissed from service. The Labour Court, however, upset the finding of the disciplinary authority and reinstated the workman. The Gujarat High Court held that it was not a criminal prosecution where the allegations have to be proved against the conductor beyond doubt. The checking staff had produced the statements of the passengers and had withstood crossexamination. Relying upon the judgement of the Supreme Court in Rattan Singh, it was held that the finding of guilt against the conductor was not unjustified.

Conclusion

39.

A perusal of the above judgements of various High Courts clearly shows that the production of passengers either in a domestic enquiry or before the Labour Court in an industrial dispute is not at all necessary. Indeed, I am of the view that in most cases this would be highly impractical because it would mean that passengers would have to be traced out, chased and brought before the enquiry officer or the Labour Court causing them unnecessary inconvenience. One has to take a pragmatic view of the situation as well as consider the amount of effort and energy that may have to be expended in producing the passengers as witnesses. DTC carries passengers who are residents of not only Delhi but also of other States. Is it practicable to expect a passenger, who goes back to his State after a trip to Delhi, to appear before an Inquiry Officer for confirming a statement already

given by him to the checking staff? As our Division Bench has cautioned us, one has to take a commonsense approach to the whole problem and not allow legal technicalities to come in the way.

40.

The facts of the present case show that there was some evidence before the Inquiry Officer, in the form of the statements of Om Prakash and H.C. Dutta and the report prepared by them. More importantly, the conclusion arrived at by the Special Metropolitan Magistrate/Mobile Court should have really concluded the issue against the conductor. Unfortunately, the learned Tribunal did not approach the issues before it in the right perspective and on the basis of the law laid down, and that is why it fell into error. It was certainly not a case of no evidence. It was also not a case of perversity, because there was some legal evidence before the Inquiry Officer, evidence that had high probative value and that had nexus with the events that were being enquired into. Once this is established, and I think it has been established in this case, the question of upsetting the conclusions of fact arrived at by the Inquiry Officer does not arise, as held in Rattan Singh and consistently followed by this Court.

41.

Under the circumstances, the learned Tribunal erred in holding that the domestic inquiry was vitiated. It must be held that the guilt of the conductor was correctly established by the inquiry officer. The first impugned order must, therefore, be set aside and the order of removal from service passed against the Respondent conductor on 14th August, 1974 is restored. Consequently, it is held there was no occasion for DTC to lead evidence before the learned Tribunal to establish the guilt of the conductor. The second impugned order is required to be quashed for this reason alone.

42.

The writ petition is allowed. The order dated 25th April, 1977 passed by the learned Additional Industrial Tribunal in O.P. No. 85 of 1974 is quashed. No costs.

March 17, 2004 ncg/rkr

( Madan B. Lokur ) Judge

Adjudication Under Minimum Wages Act, 1948


Print this TABLE OF CONTENTS Sr. no. CONTENTS Page no. 1. List of Abbreviations 2 2. Table of Cases 3 3. Research Problem 4 4. Aims and Objectives 5 6. Hypothesis 6 7. Research Problem 7 8. Literature Review 8 9. Scope 9 10. Body of Project i. Introduction ii. Salient Features of the Act iii. Claims under MW Act, 1948 iv. Legal Provisions including Judicial Trends v. Areas not covered under Section 20 of MW act. 10 12 14 16 27 11. Conclusion 28 12. Bibliography 29 LIST OF ABBREVIATIONS All India ReporterAIR AllahabadAll. GovernmentGovt. LimitedLtd. BombayBom. Supreme CourtSC Labour Law NotesLLN

Labour Labour Life RajasthanRaj. KarnatakaKar. MadrasMad. Versusv. LIST OF CASES

Law Law Insurance

JournalLLJ ReporterLLR CorporationLIC

1. Automobile Transport (Rajasthan) P. Ltd. v. Labour Commissioner, 1964 (2) LLJ 623 (Raj) 2. Basavaraja Chemma Naik v. Karnataka Veneers Ltd., 1985 (67) FJR 27 (Kar.) 3. C.S.Parameswaram v. Authority under Minimum Wages Act, 1970 LIC 315 4. Chief officer, Town Municipal Council, Nippani v. Ramchandra Dattatreya Patil, AIR 1969 Mysore 202 5. Crown Aluminium Works v. Their Workmen, AIR 1958 SC 30 6. M.L.Gupta v. City Magistrate, AIR 1960 All. 541 7. Manganese Ore(India) Ltd. v. Chandilal Sahu, 1991 LLR 151 8. Municipal Committee, Raikot v. Shamlal Kaura, 1996 (1) LLJ 57 (SC) 9. Murugan Transports v. Radhakrishnan, AIR 1961 Mad 310 10. Poly Plast Pvt. Ltd. v. Shiv Prasad, 2007 (1) LLN 47 11. Radhey Shyam v. Labour Inspector, 1982 (44) FLR 176 (Raj) 12. Ramaswami Doss v. Rama Pillai, AIR 1955 Mad. 569 13. S. Ponnambalan v. Deputy Labour Commissioner, 1995 (1) LLJ 135 (Ker.) 14. State of Jharkhand through of Labour v. Nirmal Singh, 2005 (2) LLJ 345 15. State of Rajasthan v. Mohan Singh and others, 2003 (96) FLR 4 (Raj.) 16. Robert Toppo v. State of Jharkhand and others, 2003 (98) FLR 716 (Raj.) 17. Tamil Nadu spinning Mills Association, Dindigul v.State of Tamil Nadu, 2008 (1) LLN 583 (Del.) RESEARCH PROBLEM 1) Adjudication process under the Minimum Wages 2) Procedure in case of Malicious and Vexatious 3) Procedure in case of Civil and Criminal Matters AIMS & OBJECTIVES OF THE STUDY Act, 1948. Complaints.

To understand the adjudication procedure under the Minimum Wages Act, 1948. To analyse the views of various High Courts and Honble Supreme Court in several disputes. To review the different changing views of courts from time to time. HYPOTHESIS The researcher assumed that the adjudication procedure covers all the principles of Natural Justice. The researcher also assumed that the procedure under civil and criminal matters are almost same. The researcher assumed that Section 20(3) of the Minimum Wages Act, 1948 is constitutionally valid or not. RESEARCH METHODOLOGY The research methodology used in this project is the non-empirical type of research. The sources from where the data has been collected are the secondary sources. LITERATURE REVIEW 1. Ratna Sens Industrial Relations; Text and Cases proved to be useful in knowing the concept of Wages. The researcher also came to know regarding different criteria taken into consideration while determining wage rate in industries. 2. Dr. Kaushik C. Raval and Krishna Pal Maliks An Introduction to Labour Laws proved to be useful in knowing the claims and procedures under Minimum Wages Act, 1948 in nutshell. 3. S.B.Raos Law detailed study of interpretations of Court. Moreover mentioning his interpretations. and Practice on Minimum Wages proved to be useful for the topic, as this book contains commentaries and judicial various cases in different High Courts and Honble Supreme the author could have focused more on commentaries, own views rather than explaining only on Judicial

4. Meenu Pauls Labour and Industrial Law is similar to S.B. Raos Law and Practice on Minimum Wages as the book of Meenu Paul contains a brief commentaries provided by S.B. Rao. 5. Dr. Avtar Singhs Introduction to Labour and Industrial Law was referred merely as a bare act as there are no commentaries provided in the book. The language used in bare text is presented in a simplified version. 6. S.N.Misras Labour and Industrial Laws explained the act with help of precedents as there no commentaries, only bare-text and precedents. SCOPE OF STUDY The researcher has limited the scope till section 20 of the Minimum Wages Act, 1948. As it deals with adjudication procedure, authority, penalty etc. INTRODUCTION A wage is a compensation, usually financial, received by workers in exchange for their labor. Compensation in terms of wages is given to workers and compensation in terms of salary is given to employees. Compensation is a monetary benefit given to employees in return for the services provided by them.[ ] Etymologically speaking Wage is derived from words which suggest making a promise, often in monetary form. Specifically from the Old French word wagier or gagier meaning to pledge or promise, from which the money placed in a bet (wager) also derives. These in turn may derive from the French gage to wager, the Gothic wadi, or the Late Latin wadium, also meaning a pledge.[ ][ ] A minimum wage is the lowest hourly, daily or monthly wage that employers may legally pay to employees or workers. Equivalently, it is the lowest wage at which workers may sell their labor. [ ] In a developing country like ours which faces the problem of unemployment on a very large scale it is not unlikely that labour may offer to work even on starvation wages. The policy of the act is to prevent employment of sweated labour in the general interest and so, in prescribing minimum wages rates, the capacity of employer need not be considered as the state assumes that every employer must pay to the minimum wages for the employees labour.[ ] The concept of Minimum Wages was first evolved by ILO in 1928 with reference to remuneration of workers in those industries where the, level of wages was

substantially low and the labour was vulnerable to exploitation, being not well organised and having less effective bargaining power. The need for a legislation for fixation of minimum wages in India received boost after World War II when a draft bill was considered by the Indian Labour Conference in 1945. On the recommendation of the 8th Standing Labour Committee, the Minimum Wages Bill was introduced in the Central Legislative assembly on 11.4.1946 to provide for fixation of minimum wages in certain employments. The Minimum Wages Bill was passed by the Indian Dominion Legislature and came into force on 15th March, 1948. Under the Act both State and Central Government are Appropriate Governments for fixation/revision of minimum rates of wages for employments covered by the Schedule to the Act.[ ] A tripartite Committee Viz., The Committee on Fair Wage was set up in 1948 to provide guidelines for wage structures in the country. The report of this Committee was a major landmark in the history of formulation of wage policy in India. Its recommendations set out the key concepts of the living wage, minimum wages and fair wage besides setting out guidelines for wage fixation. Article 39 states that the State shall, in particular, direct its policy towards securing (a) that the citizen, men and women equally shall have the right to an adequate livelihood and (b) that there is equal pay for equal work for both men and women. Article 43 states that the State shall endeavour, by suitable legislation or economic organization or in any other way, to give all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure, and social and cultural opportunities.[ ] SALIENT FEATURES OF THE MINIMUM WAGES ACT, 1948 To provide for fixing of minimum wages in certain employments The act enjoins the appropriate government to fix minimum rates of wages to the employees working in industries or employments included in the schedule to the act and to review and to revise them atleast once in every five years.[ ] The act imposes obligation on the employer to pay minimum wages fixed by the government.[ ] The wages shall be paid in cash unless there was a custom to pay them wholly or partly in kind in and the govt. authorizes the payment thereof.[ ]

The act also made a provision to the employees to claim the amounts short paid by the employer. In appropriate cases the employee could also get compensation from the employer for non-payment or short payment of minimum wages fixed and notified by the govt.[ ] The act does not define minimum wages. The wage committees and the appropriate governments keep in mind while fixing the minimum wages, the basic needs of the workman and his family and preserving his efficiency as a worker. The capacity of employer to pay the proposed minimum wages was not a consideration in fixing the minimum wages. The procedure or the manner of fixing or revising the minimum rates of wages is also provided in the act. The act gave the govt. two opinions; i. The govt. could appoint one or more committees to hold enquiries, gather the required information and advise the govt. in the matter of fixing minimum rates of wages. ii. The govt. could formulate its proposals publish them in official Gazette, give not less then two months time to the persons affected by the proposals to make representations and fix the minimum rates of wages and to notify them in the Gazette.[ ] The Wage Committee or the Advisory Board shall consist of equal no. of persons representing employees and employers and independent persons shall be a chairman.[ ] The state govt. shall appoint an Advisory board to coordinate work of various committees and advise the govt. in the matter of fixing and revising the minimum rates of wages. Similarly Central govt. shall appoint a Central Advisory Board. [ ] The Govt. may fix minimum piece rate wage or time rate wages and also provide for guaranteed wages for employees on piece rate wages.[ ] Alongwith fixing minimum wages the govt. is also empowered to fix hours of work for a normal working day, overtime wages, the rest day and wages required to be paid for working on the rest day.[ ] The govt. may either fix composite wage including the basic wage rate, dearness allowance and cash value for concessions in respect of supplies of essential commodities or separate rates for each of these elements.[ ] Provision is also made for prosecuting the offending employers and for imposing penalties for offences.[ ]

CLAIMS UNDER MINIMUM WAGES ACT, 1948 Section 20 of the Minimum Wages Act deals with claims. The bare text is as follows (1) The appropriate government may by notification in the Official Gazette appoint any Commissioner for Workmens Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a judge for a civil court or as a Stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of section 13 or of wages at the overtime rate under section 14 to employees employed or paid in that area. (2) Where an employee has any claim of the nature referred to in sub-section (1) the employee himself or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf or any Inspector or any person acting with the permission of the authority appointed under sub-section (1) may apply to such authority for a direction under sub-section (3): Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable : Provided Further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period. (3) When any application under sub-section (2) is entertained the authority shall hear the applicant and the employer or give them an opportunity of being heard and after such further inquiry if any as it may consider necessary may without prejudice to any other penalty to which the employer may be liable under this Act direct (i) in the case of a claim arising out of payment of less than the minimum rates of wages the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid together with the payment of such compensation as the authority may think fit not exceeding ten times the amount of such excess; (ii) in any other case the payment of the amount due to the employee together with the payment of such compensation as the authority may think fit not

exceeding ten rupees; and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application. (4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious it may direct that a penalty not exceeding fifty rupees be paid to be employer by the person presenting the application. (5) Any amount directed to be paid under this section may be recovered (a) if the authority is a Magistrate by the authority as if it were a fine imposed by the authority as a Magistrate or (b) if the authority is not a Magistrate by any Magistrate to whom the authority makes application in this behalf as if it were a fine imposed by such Magistrate. (6) Every direction of the authority under this section shall be final. (7) Every authority appointed under sub-section (1) shall have all the powers of a civil court under the Code of Civil Procedure 1908 (5 of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure 1898 (5 of 1898). AUTHORITY UNDER SECTION 20(1) OF THE MINIMUM WAGES ACT, 1948 To hear and decide the claims of the employees to the minimum rates of wages under Minimum Wages Act, 1948, the appropriate govt. may appoint an authority under section 20(1) of the act. The authority under section 20(1) is appointed by the appropriate govt. by notification in appropriate Gazette. According to sub-section 1 of section 20 any of the following persons ,may be appointed as an authority under the act : i. Any Commissioner for Workmens Compensation or ii. Any officer of the Central Government exercising functions as a Labour Commissioner for any region or iii. Any officer of the State Government not below the rank of Labour Commissioner or iv. Any other officer with experience as a judge for a civil court or as a Stipendiary Magistrate. In Malati Tea Estate Ltd. v. Budhani Munda[ ] it was held that the appointment of authority under section 20(1) need not be by name; it may be by office. In Niranjan Lal Bhargava & Co. v. Deputy Labour Commissioner[ ] the high court

rejected the argument of the employer that Deputy Labour Commissioner even though was appointed as Commissioner for workmens compensation under the Workmens Compensation Act, could not have been appointed as an Authority in view of the wording of Section 20(1) of the minimum wages act as he was only a Deputy Labour Commissioner and does not fit into the condition Any officer of the Central Government exercising functions as a Labour Commissioner for any region or any officer of the State Government not below the rank of Labour Commissioner In Poly Plast Pvt. Ltd. v. Shiv Prasad[ ] wages of a helper was paid by the management, the claim of management was perfectly justified and was rightly allowed by the competent authority. In State of Jharkhand through of Labour v. Nirmal Singh[ ] Authority appointed under the act, such a claim can be made by an employee, person authorized, or by inspector, Authority can pass an order directing the employer to pay the difference between the wages paid and the minimum wages fixed. JURISDICTION OF THE AUTHORITY APPOINTED UNDER SECTION 20(1) a. All claims arising out of payment of less then minimum rates of wages b. All claims in respect to wages not paid within the time prescribed under Section 12 (1). c. All claims in respect of payment remuneration for days of rest for work done on such days under section 13 (1) (b) and (c). d. All claims in respect of wages at the overtime rate under Section 14. FILING CLAIM UNDER SECTION 20(2) Under Section 20(2) of the Act any of the following persons can file a claim petition before the authority for directions. a. Employee himself. b. A legal practitioner authorized by employee in writing. c. A registered trade Union authorized by employee in writing. d. An inspector appointed under section 19 of the Minimum Wages Act. e. Any person acting with the permission of the Authority. The Supreme Court in a recent judgment held that both past and present employees could file claim under section 20(2) of the Minimum Wages Act. This judgment overruled the decision in Municipal Committee, Raikot v. Shamlal Kaura[ ] of Punjab High Court and approved judgment of Madras High Court in the case of Murugan Transports v. Radhakrishnan.[ ] Even numerous can file a single claim application in respect to balance payable

to them under Minimum wages payable to them and actually received by them. In such a case the compensation should be limited to 10 times the aggregate amount of wages directed to be paid to the employees or ` 10 per head as the case maybe. The authority under the Minimum Wages act has justification to allow a claim for the preceding six months as the cause of action can be a continuous one.[ ] If there is any sufficient cause for not filing claim within the prescribed time i.e. 6 months the delay can be condoned by the authority as mentioned in second proviso of section 20(2). Moreover section 20 does not refer to Article 102 of the schedule 1 of the Indian Limitation ac, 1908 and as such it was not right to import into section 20(2).[ ] PROCEDURE TO SETTLE CLAIM SECTION 20(3) OF MINIMUM WAGES ACT, 1948 An Employee who has claim over the Employer through his legal practitioner or a official of a registered Trade Union or Employee himself may apply to the Authority for claims for getting a direction. The Appropriate Authority will hear the applicant and the Employer and after giving both the persons a reasonable opportunity to hear and after making such further inquiry will pass an order. In case the Appropriate Authority finds that the Employer is guilty then, the Appropriate Authority will direct the Employer for Payment of Compensation which may not exceed 10 times of the actual Compensation. In case the Appropriate Authority finds that the Employee is guilty then, no Compensation is payable. In case the Appropriate Authority finds that both Employer and Employee is not guilty then, Employee has to pay Rs.50/to Employer. The direction given by the Appropriate Authority shall be final. The Compensation directed by the Appropriate Authority shall be recovered from the Employer as if the Authority is a Magistrate. The proceedings before the Authority will be treated on par with Civil Courts. Awarding compensation is a matter that should be considered on Merits it cannot be considered without any rhyme or reason. Ten times is the outer limit. Such maximum limit can be awarded where the authority was of the view that the employer has paid less wages than the prescribed maximum and had done so inspite of demand from employees or any officer resulting in payment of less wages then the prescribed and the employees never a grievance of it. The

court reduced the amount of compensation from 10 times to the amount equal to deficit wages.[ ] In the case S. Ponnambalan v. Deputy Labour Commissioner[ ] workmen claimed 1073 as difference in wages due and actually paid `500 as compensation. The authority awarded difference in wages of 1073 and compensation of `3235 (total `4308). The high court held that authority can award compensation more than what the workmen claimed as the court has public accountability. CONSTITUTIONAL VALIDITY OF SECTION 20(3)(i) In the case of Chief Officer, Bhavnagar Nagarpalika v. Meghjibhai Ugarbhi[ ] the constitutional validity of section 20(3)(i) of the Act. The Court held that section 20 of the act is expected that the authority under section 20 of the act will decide allies between the employer and employs with respect to any dispute arising an account of non compliance of the relevant provisions of the act regaling fixation of the rate of minimum wages. Such a power was of judicial nature and parity the corrector of judicial power. The authority has to adjudicate upon the rival of conflicting claim reside before it the authority has been vested with certain power under the relevant provision contained in Cr. P. C. It has also made a court to facilitated its effective functioning. The authority under section 20 (3) before the reaching a conclusion has to hear to party concerned. It was also enjoined to make such further inquiry and such necessary for the purpose of deciding and awarding compensation. The condition of hearing and making further investigation are sufficient guidelines for the exercise of power. The argument under section 20 (4) of the act, the penalty of the employee is only upto RS. 50 and on the employer up to ten times of the excess amount and hence, discriminatory was also rejected by the court. The court held that considering the capacity of the workman and the employer to pay the penalty, the provisions are not discriminatory in section 20 (3)(i) was valid. MALICIOUS AND VEXATIOUS CLAIMS SECTION 20(4) OF MINIMUM WAGES ACT, 1948 Section 20 of the Act provides simple and effective mechanism for employees to receive minimum wages from their employers. The section also provides some safeguards to prevent misuse of the provision by mischievous and misguided people by the way of this section i.e. Section 20(4) of the Minimum Wages Act, 1948.

Section 20(4) reads as follows: If the authority hearing any application under the section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application RECOVERY OF THE AMOUNTS FROM PARTIES SECTION 20(5) OF MINIMUM WAGES ACT, 1948 The method of recovering the amounts required to be paid by section 20 is provided by sub-section (5) of section 20, which reads as follows: Any amount directed to be paid under this section may be recovered (a) if the authority is a Magistrate by the authority as if it were a fine imposed by the authority as a Magistrate or (b) if the authority is not a Magistrate by any Magistrate to whom the authority makes application in this behalf as if it were a fine imposed by such Magistrate. The section classifies the Authorities as Magistrates and non-Magistrates can recover the amounts directed to be paid by him as if it was a fine imposed by him in the capacity of a Magistrate. In case the Authority happens to be a nonMagistrate, he has to require a Magistrate to require a Magistrate to recover the amounts as if the amounts were imposed by him as a fine. In both the cases only these amounts that were directed to be paid under section 20 by the Authority appointed under section 20 (1) of the Act can be recovered under these provisions. To recollect those amounts are:(1) The difference between the minimum wages payable under the Act and actually paid (Section 12(1)(2) The wages for working on the days of rest [Section 13(1)(b) or (c)]. (3) Over time wages (Section 14). (4) Compensation [Section 20(3)(i)] (5) Penalty for filing malicious and vexatious applications by the employees or their unions or labour inspectors or the legal practitioners (Section 20 (4) & Section 20 (2)). The directions given by the Authority need not be published in the official Gazette to become enforceable as in the case of an award of the Industrial Disputes Act. The Authority under section 20 of the Minimum Wages Act should go into the objections of the employer and decide as to how much amount was payable to the workman before he sends his request the Magistrate to recover the arrears

of wages under section 20 (5) (b) of the Act.[ ] The direction of the Authority that the employer should deposit first before the Authority the amount due to the employee, so that it may be paid to the employee concerned was upheld.[ ] In the case of State of Rajasthan v. Mohan Singh and others[ ] it was held that provision of Act does not inhibit employer to pay more under a contract, where an employee gets more than minimum prescribed, the provisions of Act would not apply and such employee cannot claim any benefit under the act. In the case of Robert Toppo v. State of Jharkhand and others[ ] it was held that no provision in the Act or in the rules states that Sramdan should not be treated as labour. In the case of Tamil Nadu spinning Mills Association, Dindigul v.State of Tamil Nadu[ ] it was held that workers in Textile industry could not be said to be nonsweated labour. It also held that government has power to add any other employment in respect of which it thinks that minimum rate of wages should be fixed under the Act. AUTHORITY OF CIVIL COURT SECTION 20(7) OF MINIMUM WAGES ACT, 1948 For the purpose of taking evidence and enforcing the attendance of witnesses and compelling the production of documents, the authority appointed under section 20 (1) of the Act was deemed to be a civil court. The section 20(7) of Minimum Wages Act reads as follows: Every authority appointed under sub-section (1) shall have all the powers of a civil court under the Code of Civil Procedure 1908 (5 of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure 1898 (5 of 1898). Once it is held that the person functioning as Authority is persona designata he will not fall within classification as an inferior criminal court while discharging the functions unde the act. Then it follows that the ordes passed directions given unde the act by him are not amenable for correction in exercise of its revisional power under the code.[ ] AREAS NOT COVERED BY SECTION 20 OF MINIMUM WAGES ACT, 1948 Section 20 is not available for recovery of arrears of wages. This section is available for recovery of wages, balance of wages, wages for overtime work

etc., due under a notification issued by appropriate govt. under the Minimum Wages Act.[ ] If there is no dispute as to the rates of wages between the employer and employee and the only question was whether a particular payment at the agreed rate was due or not then Section 20 of the act would not be attracted at all and the appropriate remedy would only be wither section 15(1) of the Payment of Wages Act or Section 33-C(2) of the Industrial Disputes Act.[ ] The question whether a person should be categorized and placed in a particular category having regard to the nature of the work that he performs in an establishment was necessary in a matter of industrial relations and in many cases where large no. of workmen are involved require a technical approach to the problem. Again it would also be necessary to consider whether in the establishment of the question so many more technical people in the higher grade are at all required for doing the work. It was impossible in a summary jurisdiction under section 20 of the Minimum Wages Act, where the order is not even capable to review, to decide such important matters which may have far reaching consequences to the employee and employer. [ ] CONCLUSION Thus, section 20 of Minimum Wages Act, 1948 provides simple cheap and quick method of settlement of employees claims. The scheme of the Act shows that it was intended to create an exclusive and a special jurisdiction providing an effective and cheap remedy to workmen to recover their dues under the Act. The procedure was summary in nature. The Authority was to hear the parties and hold such enquiry as it deems proper and give directions. The direction it issues was final for all the purposes and the order was not appealable. The assumptions made before the research are fulfilled i.e. the procedure for adjudication covers the principles of Natural Justice. Another assumption related to constitutional validity of Section 20(3)(i) is justified and is considered as valid as interpreted by Honble Supreme Court in a precedent. Wages means all remuneration capable of being expressed in terms of money, which would, if the terms of contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment. It includes house rent allowance but does not include the value of any house accommodation, supply or light, water, medical attendance or other amenity or service excluded by general or special order of appropriate Government; contribution paid by the employer to Pension/

Provident Fund or under scheme of social insurance; traveling allowance or value of traveling concession; sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or any gratuity payable on discharge. BIBLIOGRAPHY Books Referred: 1. Sen Ratna, Industrial Relations: Text and Cases, (New Delhi: Macmillan Publishing House) 2nd Edition. 2. Misra S.N., Labour and Industrial Laws, (Allahabad: Central Law Publications) 2009. 3. Singh Avtar Dr., Introduction to Labour and Industrial Law, (Nagpur: Lexisnexis Butterworths Wadhwa) 2008. 4. Paul Meenu, Labour and Industrial Law, (Allahabad: Allahabad Law Agency) 2007. 5. Rao S.B., Law and Practice on Minimum Wages, (Allahabad: Law Publishing House) 2008. 6. Raval Kaushik C. and Krishnapal Malik, An Introduction to Labour Laws, (Ahmedabad: Mahatma Gandhi Labour Institute) 2008. Websites Referred: www.etymonline.com www.managementparadise.com

Presidential Pardon Theory and concept


Print this TABLE OF CASES

AMERICAN CASES
1. B. v. Boyes, (1861) 1 B & S 311 (A). In (1861) 1 B & S 311 (A).
2. Burdwick v. United States, 236 US 79; 59 L.ed. 476. 3. Ex parte Garlandv, 71 U.S. 333 (1866). 4. Ex parte Grossman, (1924) 69 Law Ed 527 (F). 5. Knote v. United States, (1877) 24 Law Ed 442. 6. United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871). 7. United States v. Wilson 32 U.S. 150 (1833).

INDIAN CASES
1) Ashok Kumar v. Union of India, (1991) 3 SCC 498. 2) Harbans Singh v. State of Punjab, 1987 Cri LJ 1088. 3) Harbans Singh v. State of U.P., AIR 1982 SC 849. 4) Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148. 5) In Re: Maddela Yerra Channugadu and Ors , MANU/TN/0394/1954. 6) Javed Ahmed v. State of Maharashtra, (1985) 1 SCC 275. 7) K.M. Nanavati v. State of Bombay, AIR 1981 SC 112. 8) Kehar Singh v. Union of India, (1989) 1 SCC 204. 9) Krishnan Nair V. State Of Kerala, 1983-(CR1)-GJX -0321 -KER 10) Kuljit Singh v. Lt. Governor of Delhi, AIR 19782 SC 774. 11) M. T. Khan v. The Government Of Andhra Pradesh And Others, 1996-(CR2)GJX -0432 AP. 12) Madhav Shankar Sonawane v. State of Maharashtra, 1982-(CR1)-GJX -0161 BOM. 13) Madhu Mehta v. Union of India,1989Cri.L.J. 2321. 14) Maru Ram v. Union of India, (1981) 1 SCC 107. 15) R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117. 16) Ramdeo Chauhan v. State of Assam , (2001) 5 SCC 714.

17) Shashi Alias Shashidharan And Others v. State Of Karnataka And Others, 2000-(CR1)-GJX -0625 KAR. 18) Sher Singh v. State of Punjab,1983 SCC(Cri) 461. 19) State of Madhya Pradesh v. Ratan Singh, (1976) SCC (Crl) 428. 20) State of Punjab v. Joginder Singh, 1990 Cri. L.J. 5. 21) T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68. 22) The Deputy Inspector General of Police, North Range, Waltair and Anr. v. D. Rajaram and Ors, MANU/AP/0162/1960. 23) Triveniben v. State of Gujarat, (1989) 1 SCC 679. TABLE OF STATUTES 1) Code of Criminal Procedure, 1973. 2) 3) Indian Penal Code, 1860. The Constitution of India, 1950.

Introduction A Pardon is an act of grace, proceeding from the power entrusted with the execution of laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed[1] The power to pardon is one of the powers which have been conferred on the executive. Article 72 confers this power on the President and Article 161 does the same on the Governor. This power has been provided to heads of various nations. In monarchies this power is vested with the Kings of those countries and it has been exercised for centuries, but with the passage of time and the changing nature of constitutional law it has taken a new form now. In earlier times it was used by the Kings for their political gains, it helped them in generating revenues. While the modern day understanding and use of pardon power is more often associated with notions of mercy and fairness, this analysis will demonstrate that it also remains squarely in the political arena. Called pardons, amnesties, clemency, grace (as in, for example, Monaco), or mercy (as in Sweden), the pardon power is included in the written constitutions of nearly all countries. The are various reasons for the study of this area. The Presidents power to pardon deals with providing justice which is essentially a function of the judiciary. The reasons for this interference of the executive in the functions of

the judiciary have to be explored, understood and appreciated because it is a obvious exception to the doctrine of separation of powers which is one of the most eminent doctrines in the Constitution of India. The executive gives an absolute power of pardon to the executive. The likelihood of abuse of such a power is immense. Therefore, an analysis of case law with regard to presidential pardon is very important. Pardon is a concept based on mercy, therefore, mercy as a concept has to be studied and the question why mercy is vested with the executive and not with the judiciary has to be looked into. In the process of answering these questions the researcher also intends to look into some other aspects of this power. One such aspect is to look into the wording of the Article. It is very important to note the way the Courts interpret various Articles and what was the intention behind framing such an Article. There are different ways in which an Article or a Section can be interpreted. The importance of wording of Article and its interpretation can be best understood by looking at Article 21 of the Constitution. The nature and scope of this Article has changed drastically after the Court has started to look at the Article in a broader manner. Similarly looking at this articles words helps us to understand in a better manner. In addition to this there are other issues as well like foreigners applying for pardon, judicial review of pardon and the guidelines for exercise of pardon power. The researcher has made an effort to discuss all these issues to get a complete understanding of the issue.

Research Methodology

Aims and Objectives


The aim of this research paper is to explore the concept of Presidential pardon. It is tried by the researcher to explore all the possible aspects related to this area.

Scope and Limitations


The scope of the topic is limited to the Executives power to grant pardon. Since, this project is a conceptual analysis the scope is not limited to the Indian position of law. It deals with the related aspects of English and American law. This project does not deal with definitional challenges and related aspects of clemency under the Code of Criminal Procedure,1973.

Research Questions
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Where and how did the concept of pardon originate? What is the nature of Presidential pardon? What is the current position of law regarding Presidential pardon? What has the judicial response been to Presidential pardon? What are the most controversial issues regarding Presidential pardon? What steps can be taken to control abuse of this power?

Chapterisation
This research project has been divided into two heads:
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The First part deals with the nature of pardon in other countries. it looks at the law in England and America. It also takes a look at the case law development in U.S.A.

y y y y y y y y y y y y y y

The second part is divided into 13 sections. The first section deals with the Constitutional history of the pardoning power. The next section takes a look at the constitutional provisions related the Presidents and Governors power to pardon. The next section explores the various reasons for the need of this power. Fourth section takes a look at the wording and the interpretation of the Article. This section tries to look at the distinction between pardon and the concept of amnesty. Sixth section looks into the principles of natural justice and its application to Article 72. Seventh section looks at setting a time frame for the exercise of this power. Next section discusses the case of Presidential Self-Pardons. Ninth section goes into the issue of foreigners applying for pardon. Tenth section looks at the impact of other statues on Article 72 and Article 161. Next section discusses the concept of judicial review and its application to Article 72. Twelfth section looks at the judiciary and its response towards Article 72. The last section deals with some other aspects of this power, like contempt of court, legislative limitations and guidelines for the exercise of this power.

Style of Writing The style of writing used by the researcher is descriptive and analytical. Mode of Citation

A uniform mode of citation has been followed throughout the project. Sources of Data Primary sources as such case laws have been used for the purpose of writing the project. Secondary sources such as books, articles and internet have also been used.

Presidential Pardon In other Countries The pardon power of the executive has its roots in the English history. The ancient English theory with respect to executive pardon is that all powers of government originate from the King, that it was the Kings peace or the peace and good order of the Kings realm which was offended by crime; hence, the King could bestow his mercy by pardon[2]. Meanwhile the American theory is established upon the principle that all governmental power is inherent in the people. Hence, crime is an offence against the people, prosecuted in the name of the people, and the people alone can bestow mercy by pardon. As subsequently is noted, the people may confer the pardoning power upon any officer or board that they see fit[3]. To understand the concept of presidents power in India it is important to look at the pardoning power in England and also in the United States of America. The British Crown enjoys the privilege to grant pardon to any criminal. However it is not an absolute privilege, it is to be done under ministerial advice. However, this power is immune to the concept of judicial review. There is no time specified to grant pardon, it can be done before conviction as well as after it. The Crown also has the power to grant reprieve as well, it may just temporarily suspend the execution of the sentence; or may remit the whole or part of the penalty.[4] In United States of America, the President derives this power to grant pardon from Art. II, Sec. 2(1).[5] This power is unlimited and can be exercised in case of all the offences with the exception of impeachment. There is no time frame for the exercise of this power; it may be exercised at any time after the commission of the suit. Like England there is no judicial review of this power. However, in addition to that there is no legislative control as well. It is not considered to be a private act, but it is included in the constitutional scheme. Now the researcher would like to see at the development through case laws.

In United States v. Wilson[6] Chief Justice Marshall, speaking for the Court, said: As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. Marshall continued to hold that to be noticed judicially this deed must be pleaded, like any private instrument. The next case which came in front of the Court was that Ex parte Garland[7]. The Court talking about pardon said that, A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. In United States v. Klein[8], it was held that the constitution has given separate powers to all the three branches of government, and if legislature makes a statute which limits the power of the executive to pardon a person from an offence committed by him, then it such a case it is infringing upon the power of the executive by the legislature, and thus it would be unconstitutional. Meaning therefore, that there can be no legislative control over the pardoning power of the executive. The issue related to the civil and political rights of the offender was discussed in the case of Knote v.United States[9]. The court said that once the pardon has been granted to a particular person, then all his civil and political rights are restored, which were suspended earlier. However, the court said that the

person cannot be compensated for the loss he suffered during the time of confinement. Pardoning Power in India Constitutional History Before the commencement of the Indian Constitution, the law of pardon in British India was the same as in England since the sovereign of England was the sovereign of India. The Government of India Act, 1935, recognized and saved the right of the Crown or by delegation to Governor-General to grant pardons, reprieves, respites or remissions of punishment. Section 295 of the Act, 1935, had conferred on the Governor-General acting in discretion power to suspend, remit or commute sentences of death. The prerogative of the Crown was also delegated to the Governor-General by the Letters Patent creating his office, empowering him to grant to any person convicted by any criminal offence in British India, a pardon either free or subject to such conditions as he thought fit[10]. In India, the power to pardon is a part of the constitutional scheme. The Constitution of India conferred the power on the President of India and the Governors of States[11]. Constitutional Provisions Art . 72(1) of the Indian Constitution confers the power on the President to grant pardons and commute sentences in the following cases:
y y y

In all cases where the punishment or sentence is by a Court Martial An all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends In all cases where the sentence is a sentence of death

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passes by a Court Martial. Art. 161 is the corresponding provision relating to the mercy jurisdiction of the President, under Art. 72. under this Article the Governor has the power to grant pardons etc., and to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the

executive power of the State extends. The executive power of the state extends to matters with respect to which the legislature of the State has the power to make laws.[12] Reasons behind Pardoning Power The pardoning power is in derogation of the law. Implying that if laws could always be enacted and administered so they would be just in every circumstance to which they are applied, there would be no need for the pardoning power[13]. Therefore, the power to pardon is meant to be used in those circumstances where it would not be in the interest of justice to strictly apply the law even if the circumstances call for the same. Executive clemency exists to afford relief from undue severity or plain mistake in the operation or enforcement of the criminal law. The administration of justice by the Courts is not necessarily always wise or certainly understanding of circumstances, which may properly alleviate guilt. It is a check entrusted to the Executive for special cases[14].A country would be most imperfect and deficient in political morality without a power for clemency[15]. Wording of the Article It is very important to look at three words to understand the correct interpretation of the article. These three words are punishment, sentence and offence. The first two words show that the pardon by the President will save a person from the consequences of an offence and from a punishment as well. The researcher at first would like to look at the word offence. The manner in which it is used makes it quite evident that that the punishment and sentence we spoke about are in respect of the offence committed. This implies that the punishment which is supposed to be pardoned has to be in respect of an offence and not for any simple breach of a condition.[16] The reasoning that is given for the above said statement is derived from the meaning of the word offence as it is given in the General Clauses Act, 1897.[17] It is difficult to say that the same definition cannot be applied to Art.72 as well. It has been said that in reality it is this definition only which is used in this Article. It is said that the power of pardon that has been granted, can be used in following cases:
y

In respect of an act which, in the eyes of law, is an offence

y y

Which offence is in respect of a matter over which the executive power of the Union extends and For which punishment has already been adjudged[18]

It is a well established principle that a person can be sentenced or punished only when he has been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes of the law.[19] Thus if a person has not been given a chance of a fair trial or a proper investigation has not been carried out against that person, then there is no reason why that person should be given a pardon, because he is still innocent. Therefore, it is important to note that the pardoning power can be exercised only in the case of a convicted person only. However, in some of the cases the Court has said that the pardon can be granted even before conviction or trial by a Court. This principle was laid down in the case of In Re: Maddela Yerra Channugadu and Ors[20], it was said in the case, The pardon power includes not only that of granting absolute and unconditional pardons, but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either before or after conviction. This decision was affirmed later in the cases of K.M. Nanavati v. State of Bombay[21] and and Ramdeo Chauhan v. State of Assam[22] Now let us look at another situation, if the trial of a person is held not by courts but by a tribunal. Can we say that the act for which the trial has taken place in the tribunal is also an offence? The general situation will be that of noncompliance of the terms of a certain contract and therefore, termination of the same. The answer would be no, as in such a case the term, breach of conditions is used and not the word offence. To be more precise, the word offence can be used only in the case when the act done falls within the scope of the word offence as it is defined in the Indian Penal Code. In addition to this it is important to note that the person should be inquired under Code of Criminal Procedure, because if it is done under an Act which does not characterize the act as an offence, then the word punishment would not hold the same meaning as it is meant to be in Art.72. This issue has been discussed in Maqbool Hussain v. State of Bombay[23].

The same issue was discussed in S.A. Venkataraman v. Union of India[24], the Court in this case held that before Art.20(2) could be invoked, it is essential that the earlier prosecution must have been under the Act which created that offence. After looking at these two cases it is evident that before the question of the exercise of the power of the President to grant pardons can arise the person to whom pardon is granted must have been awarded punishment or sentenced by a competent court of law or judicial tribunal. Distinction between Pardon and Amnesty The issue that is discussed under this head is that whether there is a difference between amnesty and pardon. Taking the situation of revolts, in such cases the head of the state makes a proclamation that the rebels who surrender would be granted pardon and all their offences will be omitted. Can we say here that the President has the power to do so under Art.72? If we look at the situation more closely then we can see that irrespective of the words used by the President in the proclamation actually does nothing more than giving a promise to the rebels. Therefore, even if the word pardon has been used in the proclamation, in actual the action of the head of the state does not amount to pardon from a punishment. The reason being, at the time of the issue of declaration no person would have been awarded any punishment. As said earlier that it is important to prove a person guilty before he can be granted pardon, it is important to prove that a person has participated in a rebellion. Therefore, before granting pardon it is important to prove in the Court that the person has participated in the rebellion. Pardon is granted to a specified individual while the promise not to take action on the rebels surrendering arms is addressed to an unspecified body of rebels. Such an action therefore may not be termed grant of pardon in the sense in which the expression is used in Art 72. Thus the President does not have the power of granting amnesty to rebels. This power is vested only with the Parliament. It is important to note that the power given under Art. 72 is not unlimited, it is only in respect to the offences mentioned in the sub-clause (a), (b) and (c) of clause 1 of the Article. The President can exercise his power only in respect of the subjects to which the executive power of the union extends. Thus, it is clear that pardon and amnesty differ in their import and therefore amnesty does not fall within the ambit of Article 72.

Natural Justice and Pardoning Power There is a big question that whether the principles of natural justice be applied to Art. 72 and Art.161. The researcher at first would look at the arguments favouring the application. Though the power to grant pardon is executive, it is more quasi-judicial in nature.[25] A quasi-judicial body would impose a duty to act fairly.[26] The Supreme Court has held that the constitutional safeguard enshrined in Article 21 extends to the executive disposal of mercy petitions.[27] As a part of the constitutional scheme, Article 72 is subject to the discipline of Article 21. Therefore, the accused should have a minimal right to fair hearing.[28] On the other hand there have been cases in which the Court has said against the application of natural justice. The Supreme Court has held in Harbans Singh v. State of Punjab[29] that the power of the government is executive in nature and the principles of natural justice cannot be grafted thereon by means of judicial innovations and activism. Since the principles of natural justice have been applied at each stage of the sentencing procedure, it may legitimately be done away with at the executive stage. Time Frame for the Exercise of Power Even in this area there is a debate as to whether we can have a time frame for the exercise of the pardon power. The Supreme Court has taken both the stands and the researcher would present both the view points. It has been observed by the Supreme Court that a period of anguish and suffering is an inevitable consequence of sentence of death but a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. Keeping in mind the stand taken by the Court, it can be inferred that the Supreme Court is of the view that delay in the decision of the President causes avoidable mental agony and suffering to the convict. Therefore, to contain such unnecessary harm to the convict there should be a time frame during which the executive has to give its decision. Article 21 demands that any procedure, which takes away the life and liberty of persons, must be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till the last breath of the life. If there has been an inordinate delay in the disposal of a mercy petition then procedural

fairness is vitiated and Article 21 is violated[30]. Therefore, there should be a time frame for the disposal of a mercy petition. However, there is a different pint of view as well. In this the Court has taken a different stand from that taken by the Court in earlier cases. The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused[31]. Moreover, no fixed delay can be considered a fixed period[32]. The court, therefore, cannot prescribe a time limit for disposal even of mercy petitions. The Case of Presidential Self-Pardons This is another issue which needs to be looked at, whether the executive has the power to grant self-pardons. The problem with the act of self-pardon is that it is likely to undermine the publics confidence in Presidency and the Constitution. It is also against the principles of natural justice, that a person should judge himself. In the case of Calder v. Bull[33], the Supreme Court expressed its view against allowing a person to be self-judge.[34] In one of his writings Madison wrote that, No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and not improbably, corrupt his integrity.[35] The same principle was followed later in the case of Spencer v. Lapsley[36], in addition to these judgments there has been various other cases which unanimously state the principle that no man shall be judge in his own case. The case indicates that not only is this a venerable principle of philosophy and history, it is an essential part of the structure of our constitutional government. Like other issues this one also has the other side of the argument where one can argue that self-pardon can be exercised. As held by the Supreme Court in a number of judgments, the President has to act on the advice of the council of ministers while granting pardon. Now, since the council of ministers can be tried and put on trial for a criminal offence the question, which arises, is whether they can pardon themselves. Article 72 of the Constitution creates no exception to the Presidents power to pardon in order to invalidate selfpardons. Therefore, theoretically, a self-pardon by the council of ministers is very well possible. Foreigners and the Pardoning Power

The procedure for making mercy petitions has been laid down in sub-paragraph VIII of Paragraph A of the Procedure regarding petitions for mercy in death sentence cases.. Petitions for mercy submitted on behalf of a convict under sentence of death shall be dealt with mutatis mutandis in the manner provided by these instructions for dealing with a petition from the convict himself. The petitioner on behalf of a condemned convict shall be informed of the orders passed in the case.[37] If the petition is signed by more than one person, it shall be sufficient to inform the first signatory. The convict himself shall also be informed of the submission of any petition on his behalf and of the orders passed thereon. From a perusal of the aforesaid paragraph, it can be seen that there is no bar to foreigners making petition for mercy to the President of India on behalf of any of the convicts. Looking to the very nature of the power to grant pardon or clemency, applications or petitions for mercy by foreigners will have to be considered on the same footing as those submitted by Indian citizens. In light of the above, it can be inferred that there is nothing to bar a foreigner from applying for mercy. Art. 72 and Impact of other Statutes The conflict of Art .72, with another statute, came before the Court in the case of Maru Ram v. Union of India[38]. The issue in this case was, whether S. 433-A of Criminal Procedure Code, would affect the Art.72 and Art.161 of the Constitution. It was argued that since Sections 432 and 433-A, are stautory provisions, and modus operandi of the Articles 72 and 161, therefore it would render Article 433-A ineffective. The reason for this was that, it was different from the other two sections and therefore it would be against the Constitutional Provisions. However, the court held that although the powers under Art. 72 and Art. 161 and Sections 432 and 433-A may be similar, but they are not identical. This decision was later affirmed in Ramdeo Chauhan v. State of Assam[39] , it was held that the power under Article 72 and Article 161 of the Constitution is absolute and cannot be hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by any prison rules. A similar question came up before the Court in the case of Madhav Shankar Sonawane v. State of Maharashtra,[40] here the issue was that whether Section 307 of the Indian Penal Code, read with Section 34 of the Indian Penal Code, which has a

sentence of minimum of 25 years after conviction, places a limitation on the exercise of power under Art.72. The Bombay High Court in the above case held that it is not allowed to the Courts to hold that a convict shall have to undergo a minimum period of sentence even with an exercise of constitutional jurisdiction by high constitutional functionaries under Article 72 and 161. After looking at all these cases, it can be concluded that in n o situation can any legislation place a limitation on the power under Art. 72 and Art. 161. Judicial Review of Article 72 Supreme Court in Maru Ram v. Union of India[41], said that the power of pardon, commutation and release under Art. 72 and Art. 161 , shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play power. In Kehar Singh v. Union of India[42], it was said that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Rams[43] case. Looking at these cases, the Court did not actually call for judicial intervention. However, in Swaran Singh v. State of U.P[44], the Supreme Court invalidated the remission of sentence by the Governor because some material facts were not brought to the knowledge of the Governor. Not only this , the Supreme Court had asked the President to reassess his decision when it was of the view that the decision of the President was totally arbitrary and unfair[45]. In another case the Governor decided to grant pardon to 66 life convicts and there was a petition under Article 226 by 10 other convicts claiming that their cases satisfied the criteria relied upon by the Governor in granting concession, it was held that it is for the Governor, on the suggestions of concerned authorities, to deal with remissions of punishment or to commute the sentence. It was held that the High Court cannot appropriate the power of the Governor in a petition under Article 226 of the Constitution and grant pardon to the petitioners[46]. It is clear from the above case that the Court cannot usurp powers to grant pardon itself based on the criterion followed by the President and can in no circumstance reverse the decision of the President. Therefore we can conclude that the Courts can exercise judicial review over the exercise of pardon in a very limited sense to correct an unfair or arbitrary decision. Pardoning Power and Judiciary

The President while exercising the power under Article 72 can go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme Court. The power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relied falling within that power. He can, on scrutiny of the evidence on record in the criminal case, come to a conclusion different from that recorded by the Court in regard to the guilt of, and sentence impose on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. Therefore, there is no interference with the functions of the judiciary. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances, which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts, power to improve or avoid particular criminal judgments. It is only a check entrusted to the Executive for special cases. It is clear that the powers vested in the President of India under Art. 72; in the Governor under Article 161 of the Constitution and in the State Government under S. 401 of the Cr.P.C. are essentially executive powers of mercy which operate in completely different fields. The trial of criminals and the passing of sentences are purely in the domain of the judiciary whereas the execution of sentences is purely with the Executive Government. Thus it is clear that the orders under Article 72 are essentially and basically executive orders in a completely different field[47]. The Head of the Executive exercises his powers of mercy under the Constitution commonly known as mercy jurisdiction. Since, no such powers are vested with any judicial organ; there can be no infringement upon its functions[48]. Some Other Aspects of Pardon Power Contempt of Court The Pardoning power of the President extends even to criminal contempt of court , the reason for this being, it does not produce a different effect from the exercise of mercy jurisdiction in other circumstances. This principle was laid down in the case of Ex parte Grossman[49] Legislative Limitations on Pardoning Power

One of the possible ways through which the legislature can keep a check on the limitless power of the President is the process of impeachment. However, it is important to consider that whether the abuse of the pardon power is a high crime or a misdemeanour But, the impeachment limitation suffers from the same defects as the current restrictionsit is useless against the President who grants a questionable pardon in the midnight hours of his second term. Thus, impeachment likely will not serve as a check on the Presidents use of the pardon power .Looking at the other ways the it can be said that a constitutional amendment is the only method where legislature could expressly limit the clemency power of the executive. Other legislative options exist that would not limit the Presidents power to grant pardons but instead would diminish the need for clemency. Guidelines For Exercise of Power The pardoning power should never be arbitrary and mala fide. Hence, the power to pardon, commute or remit is subject to guide-lines. The question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case. Therefore, it is not possible to have guidelines for the exercise of such power[50]. We cannot have a set of rules to be applied in all the cases. There is adequate indication in the terms of Article 72 and in the history of the power protected in that provision as well as existing case law, and specific guidelines need not be spelled out[51]. Since, the power is vested with the Head of the Executive; it cannot be presumed that there shall be an abuse of the power. Conclusion As seen that Presidential pardon is one of the powers that been given to the executive by the Constitution. The researcher in his conclusion would like to look back at the issues discussed and analyse them. The first issue that the researcher would take up is the importance and necessity of pardoning power. It is very important to have this power in Constitution of all the countries. The reason for this being that there should be some authority which should be present to keep a check and rectify the mistakes made by the judiciary. The legislature can also do this, through a process of passing a law. But, in the case of individuals it is not possible for the legislature to pass a law. In such cases the executive can pardon the individual.

This process is also important because awarding death penalty to someone is the highest punishment that can be awarded to anyone. Thus, it is important to review it by the Head of the State. There is a necessity on the part of the legislature to bring an amendment to the constitution, to prevent the use of power in ones own case. Meaning that there should not be any self-pardoning.on the part of the executive. The reason for this being that in such a case there would be a bias and abuse of power will take place. It is also important to set a time frame for the exercise of this power, this will help in early disposal of the cases. Judicial review of this power is another issue which is debatable. The researcher is of the opinion that this power should not be absolute, at the same time the judiciary should not interfere with his power too much, it should only be done in the case of arbitrariness and mala fide. The principles of natural justice should be imbibed in the exercise of clemency powers because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through procedural fairness the scope of a bias is reduced. There is no need for any guidelines to be set as the scope will differ from case to case basis. Bibliography

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1) Balkrishana, Presidential Power of Pardon, 13 J.I.L.I (1971) 103. 2) Brian C. Kalt, Pardon Me?: The Constitutional Case Against Presidential Self Pardons,106 Yale Law Journal 1996 779. 3) Harold J. Krent, Conditioning the Presidents Conditional Pardon Power, 89 California Law Review 2001 1665. 4) Naveen Thakur, Presidents Power to Grant Pardon in Case of a Death Sentence- Whether it is to be Unfettered Discretion?, 1999 Cri LJ /Journal 101. 5) P.J Dhan, Justiciability of the Presidents Pardon Power, 26 IBR 1999 69. 6) Paul J. Haase, Oh my darling clemency: existing or possible limitations on the use of the Presidential pardon power 39 Am. Crim L Rev. 1287.

7) Poornima Sampath and Priyadarshini Narayanan, Mercy Petitions : Inadequacies in Practice, 12Stud Adv (2000) 72. 8) Scott P. Johnson, White House scandals and the Presidential pardon power:: Persistent risks and prospects for reform. New England Law Review, Summer 1999. 9) Upendra Baxi, Clemency, Erudition and Death : The Judicial Discourse in Kehar Singh, 30J.I.L.I(1988) 501. BOOKS 1) Ed. Robert Blackburn, A Written Constitution for the United Kingdom (Mansell : London, 1991). 2) H.M Seervai, Constitutional Law of India, Vol. 2, (N.M Tripathi & Co. : Bombay, 1984). 3) H.M. Marshall, Natural Justice (Delhi: Universal Publishing Co., 1996). 4) Hellen and Gavin, Sourcebook on Public Law (Cavendish Publishing Company : London, 1997). 5) Mahendra P. Singh, V.N. Shuklas Constitution of India (Eastern Book Company : Lucknow, 2001). 6) S.C. Jain, The Constitution of India-Select Issues and Perceptions (Taxmann : New Delhi, 2000).

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1) 2) 59 Am Jur 2d, Pardon and Parole. 67A C.J.S Pardon and Parole.

[1] Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480.

[2] 59 Am Jur 2d, Pardon and Parole at 10. [3] Id. [4] P.J. Dhan, Justiciability of the Presidents Pardon Power, 26 Indian Bar Review 1999, at 69. [5] It reads as, The President..shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. [6] 32 U.S. 150 (1833)

[7] 71 U.S. 333 (1866) [8] 80 U.S. (13 Wall.) 128, 147 (1871). [9] 95 U.S. 149 (1877). [10] P.J Dhan, Justiciability of the Presidents Pardon Power, 26 IBR 1999 7071. [11] Id. [12] V.N Shukla [13] The Deputy Inspector General of Police, North Range, Waltair and Anr. v. D. Rajaram and Ors, MANU/AP/0162/1960. [14] S.C. Jain, The Constitution of India-Select Issues and Perceptions 57(Taxmann : New Delhi, 2000). [15] 59 Am Jur 2d, Pardon and Parole, 5. [16] Balkrishana, Presidential Power of Pardon, 13 J.I.L.I (1971) at 104. [17] The definition that has been given in the Act is, An act or omission made punishable by law for the time being in force. [18] Supra Note Balkrishna at 105. [19] Art. 372, Constitution of India. [20] MANU/TN/0394/1954. [21] AIR 1981 SC 112. The Supreme Court has, however, created an exception to the above rule in K.M. Nanavatis case where it held that the Governor cannot exercise his powers under Article 161 when the matter is sub judice in the Supreme Court during the time Article 142 is in operation. [22] (2001) 5 SCC 714. [23] AIR 1953 SC 325. the Court in this case observed that in order that the protection of Art 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or administrative enquiry. The very wording of the Art.20 would indicate that the proceedings therein

contemplated are of nature of criminal proceedings before a Court of law or a judicial tribunal, in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. [24] AIR 1964 SC 375. [25] R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117. [26] Poornima Sampath and Priyadarshini Narayanan, Mercy Petitions : Inadequacies in Practice, 12 Stud Adv (2000) 72 at 74. [27] T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68. [28] Upendra Baxi, Clemency, Erudition and Death : The Judicial Discourse in Kehar Singh, 30J.I.L.I(1988) 501 at 503. [29] 1987 Cri LJ 1088. [30] Triveniben v. State of Gujarat, (1989) 1 SCC 679. [31] Triveniben v. State of Gujarat, (1989) 1 SCC 679; Sher Singh v. State of Punjab,1983 SCC(Cri) 461. [32]Madhu Mehta v. Union of India,1989Cri.L.J. 2321. [33] 3 U.S.(3 Dall.) 386 (1798). [34] The Court said that a law that makes a amn Judge in his own causeit is against all reason and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it. [35] Brian C. Kalt, Pardon Me?: The Constitutional Case Against Presidential Self Pardons, 106 Yale Law Journal 1996 779 at 806.. [36] 61 U.S. (20 How.) 264, 266 (1857). [37] Subhash C. Jain, The Constitution of India- Select Issues & Perceptions, Taxmann Publications Ltd., New Delhi, 2000) at 59. [38] AIR 1980 SC 2147. [39] (2001) 5 SCC 714. [40] 1982-(CR1)-GJX -0161 BOM. [41] AIR 1980 SC 2147. [42] AIR 1989 SC 653.

[43] AIR 1980 SC 2147. [44] (1998) 4 SCC 75. [45] Harbans Singh v. State of U.P., AIR 1982 SC 849. Facts: Three persons were convicted of murder and sentenced to death. One of them was hung as he did not file a special appeal. The one who filed a special appeal was commuted and his sentence was reduced to life imprisonment. The third one had appealed to the President for pardon and his appeal was rejected. On the day he was to be hung he filed a special appeal. [46] Shashi Alias Shashidharan And Others v. State Of Karnataka And Others, 2000-(CR1)-GJX -0625 KAR. [47] Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148. [48] K. M. Nanavati v. State of Bombay, AIR 1961 SC 112. [49] Ex parte Grossman, (1924) 69 Law Ed 527 (F). [50] Kuljit Singh v. Lt. Governor of Delhi, AIR 19782 SC 774. [51] (1989) 1 SCC 204, Ashok Kumar v. Union of India, AIR 1991 SC 1792.
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Domestic Inquiry
14. (1) An employer may, on the grounds of misconduct inconsistent with the fulfillment of the express or implied conditions of his service, after due inquiry: (a) dismiss without notice the employee; or

(b) downgrade the employee; or

(c ) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.

Section 14(1) above only mentions "due inquiry" but does not provide specific procedures as to how an inquiry should be conducted. Initially employers especially those without proper HR department, had to do what they thought best. Their actions had been challenged and the Industrial Court had handed over numerous decisions on the necessity of holding "domestic inquiry". The Industrial Court always held that natural injustice had not been done if an employer did not hold an inquiry or proper inquiry and the Court would invariably rule against the employer who failed to do this. It is an important principle that no employee should be dismissed for misconduct unless the employee concerned has been given an opportunity to defend himself or had been given an opportunity to be heard.

In order for a domestic inquiry to be properly held, certain procedure need to be followed. Stated below are some guideline for a proper inquiry:

A. Serve on the employee alleged to have committed misconduct a letter containing:

1.

Specific charge of the type of offence, the date, the time and place where the offence took place. Also state which rules of company's rules or regulations have been violated.

2. 3. 4.

The date, the time and the place where he has to be present for the inquiry. Inform him his right bring along witnesses if any; If necessary, suspend him for no more than one weeks pending the inquiry.

B. Set up a panel comprising of

1. 2. 3.

Chairman (should be a person not involved in the investigation of the offence) Two independent panel members (may be employees from another department) A prosecutor (may be a personnel officer in the HR department)

C. In the hearing:

1.

The prosecution will begin first . He is to make out a case against the accused first by producing witnesses who have direct knowledge of case;

2.

The accused i.e. the employee alleged to have committed the offence, is allowed to question (cross examine) each of the witnesses on the evidence they have given;

3. 4. 5.

After that the accused will be asked enter his defence i.e. to tell his side of the story; The accused may produce witness or witnesses to support what he has said; The accused as well as his witnesses are subject to cross examination by the prosecutor.

6. 7. 8.

The chairman will guide the proceeding and to record the evidence in writing; Tape-recording of the proceeding may be used. Lawyers are not allowed to appear in this type of domestic inquiry but official of the employee's union is allowed.

D. After the hearing.

1. 2.

The panel will discuss the hearing and study the evidence given by both parties; The chairman will submit the panel's finding and recommendations to the Management

E. Management's decision.

(a) dismiss without notice the employee; or

(b) downgrade the employee; or

(c ) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.

My company is very small and I don't have enough staff and to form a panel for the domestic inquiry, what shall I do?

1. You may seek assistance from your business associates who are familiar in domestic inquiry to help you out; 2. You can engage labour consultancy firm to give you the necessary advice for which you have to pay; 3. You may even ask the pastor of your church to be the panel chairman. The important thing is that NO MAN SHOULD BE CONDEMNED WITHOUT BEING HEARD. For details please refer to Section 14 of the Employment Act

Disciplinary Action 1997-98


REFERENCE: Question
SK SING VS CENTRAL BANK OFINDIA [1997(I) LLJ 537 SC-DB] IN ECIL VS KARUNAKAR [1994 ILLJ 162] THE SUPREME COURT HAD ORDERED THAT A COPY OF THE ENQUIRY REPORT SHOULD BE FURNISHED AND THE REPRESENTATION TO IT BE CONSIDERED BEFORE ANY PUNISHMENT ORDERS IS ISSUED AGAINST A DELINQUENT. WOULD FAILURE TO SUPPLY THE SAME MAKE THE ACTION FATAL? IN AN ENQUIRY THE MANAGEMENT HAD REFUSED TO GIVE THE PRELIMINARY REPORT OR PRE-RECORDED STATE-MENT OF SOME WITNESSES DEMANDED BY THE DELINQUENT WOULD THIS VITIATE THE DISCIPLINARY ACTION. CAN THE STATEMENT OF A COACCUSED BE TAKEN INTO ACCOUNT IN ADJUDGING THE GUILT OF ANOTHER ACCUSED.

Held
MANY COURTS HAD HELD THAT IT WOULD BE FATAL AND ORDERED REVERSAL OF THE DISCIPLINARY PUNISHMENT. IN THIS LATEST JUDGEMENT THE SUPREME COURT HAS MODIFIED THE POSITION. THE PRESENT POSITION IS THAT EVEN IF THE REPORT IS NOT FURNISHED IT WOULD NOT BE FATAL. COURTS SHOULD CALL UPON THE EMPLOYEE TO SHOW WHAT PREJUDICE. HE HAS SUFFERED BEFORE PASSING AN ORDER OF REJECTING OR UPHOLDING THE DISCIPLINARY ACTION. AS THESE WITNESSES WERE EXAMINED AT THE ENQUIRY AND OPPORTUNITY WAS GIVEN FOR THEIR CROSS EXAMINATION, NO PREJUDICE HAS BEEN CAUSED, HELD NOT VITIATED.

STATE BANK OF PATIA VS SK SHARMA [1997 LLR 268 SC-DB]

VIJAYA KUMAR NIGAM VS STATE OF MP [1997 (77) FLR 8 SC-DB]

THIS IS NOT EVIDENCE IN THE STRICT SENSE UNDER THE EVIDENCE ACT. BUT THE EVIDENCE ACT IS NOT APPLICABLE TO DOMESTIC ENQUIRIES AND HENCE THIS KIND OF EVIDENCE CAN BE RELIED UPON IN DOMESTIC ENQUIRY. WHILE THE SUPREME COURT HAS WIDE POWERS TO HEAR A CASE AS AN APPEAL AND GO INTO ALL ASPECTS OF DISPUTE UNDER ARTICLE 136, THE POWERS OF THE HIGH COURTS TO INTERFERE UNDER ARTICLE 226 IN DISCIPLINARY MATTERS IS RESTRICTED AND LIMITED. HIGH COURTS CAN INTERFERE ONLY IF THE FOLLOWING IS MADE OUT: 1) WHEN ENQUIRY IS VITIATED DUE TO NON-OBSERVANCE OF THE PRINCIPLES OF NATURAL JUSTICE FOR DENIAL OF A REASONABLE OPPORTUNITY FOR PUTTING UP A DEFENCE.

INDIAN OIL CORPORATION VS ASHOK KUMAR ARORA [1997 (75) FLR 949 SC-DB]

WHAT IS THE EXTENT AND SCOPE OF THE POWERS OF HIGH COURTS TO INTERFERE IN DISCIPLINARY PUNISHMENTS UNDER ARTICLE 226

2)

3) OR WHEN FINDING IS BASED ON NO EVIDENCE 4) THE PUNISHMENT DISPROPORTIONATE TO OFFENCE PROVED. IS THE

STEEL AUTHORITY OF INDIA VS DR RK DIWAKAR [1998 ILLJ-344SC-DB]

MUST A CHARGE SHEET BE ISSUED BY THE DISCI-PLINARY AUTHORITY. CAN AUTHORITY BELOW THE RANK OF THE APPOINTING AUTHORITY WILL ISSUE IT. A CHARGE MEMO ISSUED BY A

. WHILE A PUNISHMENT ORDER MUST BE ISSUED ONLY BY THE DULY NOTIFIED DISCIPLINARY AUTHORITY A CHARGE SHEET COULD BE ISSUED BY ANY LOWER AUTHORITY ESPECIALLY WHEN THERE IS A PROPER DELEGATION OF POWER TO

LOWER AUTHORITY BE INVALID? B BALAKRISHNAN REDDY VS ELECTRICITY BOARD (APSEB) [WRIT PETITION NO.16852/1991 DELIVERED IN JANUARY 1998] CAN THE DISCIPLINARY AUTHORITY ORDER A FRESH ENQUIRY AFTER THE ENQUIRY OFFICER HAS SUBMITTED THE REPORT HOLDING THE EMPLOYEE NOT GUILTY

SUCH LOWER AUTHORITY THE DISCIPLINARY AUTHORITY CANNOT ORDER A FRESH ENQUIRY - THIS WOULD AMOUNT TO HARASSMENT.

THE DISCIPLINARY AUTHORITY COULD HOWEVER WRITE A DIFFERENT FINDING BASED ON THE RECORDS OF THE FIRST ENQUIRY AND COURTS WOULD UPHOLD A DIFFERENT FINDING IF IT IS A SPEAKING ORDER.

A Brief Note On Labour Legislation In India


Created: 2007-09-27

By Babu Mathew Legislative history The history of labour legislation in India is naturally interwoven with the history of British colonialism. Considerations of British political economy were naturally paramount in shaping some of these early laws. In the beginning it was difficult to get enough regular Indian workers to run British establishments and hence laws for indenturing workers became necessary. This was obviously labour legislation in order to protect the interests of British employers. Then came the Factories Act. It is well known that Indian textile goods offered stiff competition to British textiles in the export market and hence in order to make India labour costlier the Factories Act was first introduced in 1883 because of the pressure brought on the British parliament by the textile magnates of Manchester and Lancashire. Thus we received the first stipulation of eight hours of work, the abolition of child labour, and the restriction of women in night employment, and the introduction of overtime wages for work beyond eight hours. While the impact of this measure was clearly welfarist the real motivation was undoubtedly protectionist! To date, India has ratified 39 International Labour Organisation (ILO) conventions of which 37 are in force. Of the ILOs eight fundamental conventions, India has ratified four - Forced Labour 1930, Abolition of Forced Labour 1957, Equal Remuneration 1951, and Discrimination (employment and occupation) 1958. The organised and the unorganised An important distinction that is popularly made nowadays in all discussions relating to labour legislation is between workers in the organised/formal sector and those in the informal/informal sector. Many who make this distinction do so with ulterior motives, yet we must reckon with it - especially because out of the total workforce in the country, 92 percent work in the informal sector while only eight percent work in the formal sector. At the outset it must therefore be remembered that those who were unorganised yesterday are organised today and those who are unorganised today aspire to become the organised tomorrow. Moreover, many rights, benefits, and practices, which are

popularly recognised today as legitimate rights of the workers, are those that have accrued as a result of the struggles carried out by the earlier generation of workers. The attempt, prevalent in some circles to pit one section of workers against the others, must therefore be carefully understood and deserves to be rejected outright. Trade unionism and the Trade Union Act 1926 There are almost ten major central union organisations of workers based on different political ideologies. Almost every union is affiliated to one of these. These central organisations have state branches, committees, and councils from where its organisation works down to the local level. The first central trade union organisation in India was the All India Trade Union Congress (AITUC) in 1920 - almost three decades before India won independence. At about the same time workers at the Buckingham and Carnatic Mills, Madras went on strike led by B P Wadia. The management brought a civil suit against the workers in the Madras High Court and not only obtained an injunction order against the strike but also succeeded in obtaining damages against the leader for inducing a breach of contract. This was followed by widespread protests that finally yielded in the Trade Union Act 1926 giving immunity to the trade unions against certain forms of civil and criminal action. Apart from this aspect the Trade Union Act also facilitated registration, internal democracy, a role for outsiders and permission for raising a political fund subject to separate accounting requirements. The Trade Union Act facilitates unionisation both in the organised and the unorganised sectors. It is through this law that the freedom of association that is a fundamental right under the Constitution of India is realised. The right to register a trade union however does not mean that the employer must recognise the union there is in fact no law which provides for recognition of trade unions and consequently no legal compulsion for employers, even in the organised sector, to enter into collective bargaining. Yet in reality because of the strength of particular trade unions there is fairly widespread collective bargaining, especially in the organised sector. Wage determination in the unorganised sector Wage determination in India has been achieved by various instruments. For the unorganised sector the most useful instrument is the Minimum Wages Act 1948. This law governs the methods to fix minimum wages in scheduled industries (which may vary from state to state) by using either a committee method or a notification method. A tripartite Advisory Committee with an independent Chairman advises the Government

on the minimum wage. In practice unfortunately, the minimum wage is so low that in many industries there is erosion of real wage despite revision of the minimum wage occasionally. A feeble indexation system has now been introduced in a few states only. Collective bargaining in the organised sector An important factor that is not much recognised, but which still prevails in many organised sector units is fixing and revising wages through collective bargaining. The course of collective bargaining was influenced in 1948 by the recommendations of the Fair Wage Committee that reported that three levels of wages exist - minimum, fair, and living. These three wage levels were defined and it was pointed out that all industries must pay the minimum wage and that the capacity to pay would apply only to the fair wage, which could be linked to productivity. In addition to this the fifteenth Indian Labour Conference, a tripartite body, met in 1954 and defined precisely what the needs-based minimum wage was and how it could be quantified using a balanced diet chart. This gave a great boost to collective bargaining; many organised sector trade unions were able to achieve reasonably satisfactory indexation and a system of paying an annual bonus. It is now the law, that a thirteenth month of wage must be paid as a deferred wage to all those covered by the Payment of Bonus Act. The minimum bonus payable is 8.33 percent and the maximum is 20 percent of the annual wage. Strikes and lockouts Workers have the right to strike, even without notice unless it involves a public utility service; employers have the right to lockout, subject to the same conditions as a strike. The parties may sort out their differences either bilaterally, or through a conciliation officer who can facilitate but not compel a settlement which is legally binding on the parties, even when a strike or a lockout is in progress. But if these methods do not resolve a dispute, the government may refer the dispute to compulsory adjudication and ban the strike or lockout. Conciliation, arbitration, and adjudication When parties engaging in collective bargaining are unable to arrive at a settlement, either party or the government may commence conciliation proceedings before a government appointed conciliation officer whose intervention may produce a settlement, which is then registered in the labour department and becomes binding on all parties. If conciliation fails it is open to the parties to invoke arbitration or for the appropriate government to refer the dispute to adjudication before a labour court or a tribunal whose

decision may then be notified as an award of a binding nature on the parties. Disputes may be settled by collective bargaining, conciliation, or compulsory adjudication. Colonial dispute settlement machinery The Industrial Disputes Act 1947 (IDA) provides for the settlement machinery above. The framework of this legislation, which is the principle legislation dealing with core labour issues, is of colonial origin. This law originated firstly in the Trade Disputes Act 1929, introduced by the British, when there was a spate of strikes and huge loss of person days and secondly through Rule 81A of the Defence of India Rules 1942, when the British joined the war efforts and wanted to maintain wartime supplies to the allied forces. Interestingly the interim government on the eve of formal independence retained this framework by enacting the IDA, which still remains on the statute book. Developments after independence Even though the IDA was primarily meant for industry in the organised sector, its present application has now extended well into the unorganised sector, through judgemade law. Its pro-worker protection clauses and safeguards against arbitrary job losses have evolved over a period of time both through the process of sustained legislative amendments and through the process of judicial activism spread over more than five decades. The original colonial legislation underwent substantial modification in the post-colonial era because independent India called for a clear partnership between labour and capital. The content of this partnership was unanimously approved in a tripartite conference in December 1947 in which it was agreed that labour would be given a fair wage and fair working conditions and in return capital would receive the fullest cooperation of labour for uninterrupted production and higher productivity as part of the strategy for national economic development and that all concerned would observe a truce period of three years free from strikes and lockouts. Regulation of job losses Space does not allow a detailed discussion of this transformation in labour policy and consequent amendments to labour law, but provisions that deal with job losses must be noted. Under the present law any industrial establishment employing more than 100 workers must make an application to the Government seeking permission before resorting to lay-off, retrenchment, or closure; employers resorting to any of the said forms of creating job losses, is acting illegally and workers are entitled to receive wages for the period of illegality. The Reserve Bank of India commissioned a study into the causes of sickness in Indian industry and they reported cryptically, Sickness in India is

a profitable business. This chapter in the IDA, which has been identified as offering high rigidity in the area of labour redundancy, has been targeted for change under globalisation and liberalisation. Protection of service conditions A feature of the IDA is the stipulation that existing service conditions cannot be unilaterally altered without giving a notice of 21 days to the workers and the union. Similarly if an industrial dispute is pending before an authority under the IDA, then the previous service conditions in respect of that dispute cannot be altered to the disadvantage of the workers without prior permission of the authority concerned. This has been identified as a form of rigidity that hampers competition in the era of the World Trade Organisation. Removal from service A permanent worker can be removed from service only for proven misconduct or for habitual absence - due to ill health, alcoholism and the like, or on attaining retirement age. In other words the doctrine of hire and fire is not approved within the existing legal framework. In cases of misconduct the worker is entitled to the protection of Standing Orders to be framed by a certifying officer of the labour department after hearing management and labour, through the trade union. Employers must follow principles of natural justice, which again is an area that is governed by judge-made law. An order of dismissal can be challenged in the labour court and if it is found to be flawed, the court has the power to order reinstatement with continuity of service, back wages, and consequential benefits. This again is identified as an area where greater flexibility is considered desirable for being competitive. Return to colonial days! Almost all pro-worker developments that accrued since independence are now identified as areas of rigidity and in the name of flexibility there is pressure on the government of India to repeal or amend all such laws. Interestingly, if such a proposal is fully implemented, labour law, especially for the organised sector, will go back to the colonial framework where state intervention was meant primarily to discipline labour, not to give it protection. Globalisation The most distinctly visible change from globalisation is the increased tendency for offloading or subcontracting. Generally this is done through the use of cheaper forms of contract labour, where there is no unionisation, no welfare benefits, and quite often not

even statutorily fixed minimum wages. Occasionally the tendency to bring contract labour to the mother plant itself is seen. This is very often preceded by downsizing, and since there is statutory regulation of job losses, the system of voluntary retirement with the golden handshake is widely prevalent, both in public and private sectors. Regulation of contract labour The Contract Labour (Prohibition and Regulation) Act 1970 provides a mechanism for registration of contractors (if more than twenty workers are engaged) and for the appointment of a Tripartite Advisory Board that investigates particular forms of contract labour, which if found to be engaged in areas requiring perennial work connected with the production process, then the Board could recommend its abolition. A tricky legal question has arisen as to whether the contract workers should be automatically absorbed or not after the contract labour system is abolished. Recently a Constitutional Bench of the Supreme Court held that there need not be such automatic absorption - in effect this abolishes the contract labourer and has given rise to a serious anomaly. Phase between organised and unorganised We are already witnessing a reduction in the organised labour force and an increase in the ranks of the unorganised. The above law is a kind of inter-phase in the process of regulating the transition from regular employment to irregular employment. If contract labour is seen as introducing a form of flexibility, a strict enforcement of this Act could have had a salutary effect on the transition process. Instead the enforceability of the Act is now diluted and consequently even the minimum protection envisaged under this law to contract labourers is in jeopardy. Dominant thinking in relation to globalisation is having its effect on the judicial process also, ignoring Directive Principles of State Policy contained in the Constitution of India. Employment injury, health, and maternity benefit The Workmans Compensation Act 1923 is one of the earliest pieces of labour legislation. It covers all cases of accident arising out of and in the course of employment and the rate of compensation to be paid in a lump sum, is determined by a schedule proportionate to the extent of injury and the loss of earning capacity. The younger the worker and the higher the wage, the greater is the compensation subject to a limit. The injured person, or in case of death the dependent, can claim the compensation. This law applies to the unorganised sectors and to those in the organised sectors who are not covered by the Employees State Insurance Scheme, which is conceptually considered to be superior to the Workmans Compensation Act.

The Employees State Insurance Act provides a scheme under which the employer and the employee must contribute a certain percentage of the monthly wage to the Insurance Corporation that runs dispensaries and hospitals in working class localities. It facilitates both outpatient and in-patient care and freely dispenses medicines and covers hospitalisation needs and costs. Leave certificates for health reasons are forwarded to the employer who is obliged to honour them. Employment injury, including occupational disease is compensated according to a schedule of rates proportionate to the extent of injury and loss of earning capacity. Payment, unlike in the Workmens Compensation Act, is monthly. Despite the existence of tripartite bodies to supervise the running of the scheme, the entire project has fallen into disrepute due to corruption and inefficiency. Workers in need of genuine medical attention rarely approach this facility though they use it quite liberally to obtain medical leave. There are interesting cases where workers have gone to court seeking exemption from the scheme in order to avail of better facilities available through collective bargaining. The Maternity Benefit Act is applicable to notified establishments. Its coverage can therefore extend to the unorganised sector also, though in practice it is rare. A woman employee is entitled to 90 days of paid leave on delivery or on miscarriage. Similar benefits, including hospitalisation facilities are available under the law described in the paragraph above. Retirement benefit There are two types of retirement benefit generally available to workers. One is under the Payment of Gratuity Act and the other is under the Provident Fund Act. In the first case a worker who has put in not less than five years of work is entitled to a lump sum payment equal to 15 days wages for every completed year of service. Every month the employer is expected to contribute the required money into a separate fund to enable this payment on retirement or termination of employment. In the latter scheme both the employee and the employer make an equal contribution into a national fund. The current rate of contribution is 12 percent of the wage including a small percentage towards family pension. This contribution also attracts an interest, currently 9.5 percent per annum, and the accumulated amount is paid on retirement to the employee along with the interest that has accrued. Unfortunately the employee is allowed to draw many types of loan from the fund such as for house construction, marriage of children, and education etc. As a result very little is available at the time of retirement. This is also a benefit, which is steadily being extended to sections of the unorganised sector, especially where the employer is clearly identifiable.

Women labour and the law Women constitute a significant part of the workforce in India but they lag behind men in terms of work participation and quality of employment. According to Government sources, out of 407 million total workforce, 90 million are women workers, largely employed (about 87 percent) in the agricultural sector as labourers and cultivators. In urban areas, the employment of women in the organised sector in March 2000 constituted 17.6 percent of the total organised sector. Apart from the Maternity Benefit Act, almost all the major central labour laws are applicable to women workers. The Equal Remuneration Act was passed in 1976, providing for the payment of equal remuneration to men and women workers for same or similar nature of work. Under this law, no discrimination is permissible in recruitment and service conditions except where employment of women is prohibited or restricted by the law. The situation regarding enforcement of the provisions of this law is regularly monitored by the Central Ministry of Labour and the Central Advisory Committee. In respect of an occupational hazard concerning the safety of women at workplaces, in 1997 the Supreme Court of India announced that sexual harassment of working women amounts to violation of rights of gender equality. As a logical consequence it also amounts to violation of the right to practice any profession, occupation, and trade. The judgment also laid down the definition of sexual harassment, the preventive steps, the complaint mechanism, and the need for creating awareness of the rights of women workers. Implementation of these guidelines has already begun by employers by amending the rules under the Industrial Employment Standing Orders Act 1946. Implementation of labour laws The Ministry of Labour has the responsibility to protect and safeguard the interests of workers in general and those constituting the deprived and the marginal classes of society in particular with regard to the creation of a healthy work environment for higher production and productivity. The Ministry seeks to achieve this objective through enacting and implementing labour laws regulating the terms and conditions of service and employment of workers. In 1966, the Ministry appointed the First National Labour Commission (NLC) to review the changes in the conditions of labour since independence and also to review and assess the working of the existing legal provisions. The NLC submitted its report in 1969. The important recommendations of NLC have been implemented through amendments of various labour laws. In the areas of wage policy, minimum wages, employment service, vocational training, and workers education, the recommendations made by the NLC have been largely taken into

account in modifying policies, processes, and programmes of the government. In order to ensure consistency between labour laws and changes in economic policy, and to provide greater welfare for the working class, the Second NLC was constituted in 1999. All labour laws provide for an inspectorate to supervise implementation and also have penalties ranging from imprisonment to fines. Cases of non-implementation need to be specifically identified and complaints filed before magistrates after obtaining permission to file the complaint from one authority or the other. Very few cases are filed, very rarely is any violator found guilty, and almost never will an employer be sent to prison. Consequently these powers are used by corrupt officials only for collecting money from employers. This does not however mean that no labour laws are implemented. On the contrary experience has proved that the implementation of such laws is directly proportional to the extent of unionisation. This generalisation is particularly true of the informal sector. The unorganised sector Many of the laws mentioned above apply to the unorganised sector also. In some cases a separate notification may be necessary to extend the application of a particular law to a new sector. It is useful to notice that some pieces of legislation are more general in character and apply across the board to all sectors. The Trade Union Act 1926, The Minimum Wages Act 1948, The Contract Labour (Regulation and Abolition) Act 1970, The Workmans Compensation Act 1923, and The Payment of Wages Act 1936 are examples of this type. In certain cases, even the IDA 1947 would be included. In addition to the above there are special sectoral laws applicable to particular sectors of the unorganised. Under this category are laws like the Building and Construction Workers Act 1996, the Bonded Labour System (Abolition) Act 1976, The Interstate Migrant Workers Act 1979, The Dock Workers Act 1986, The Plantation Labour Act 1951, The Transport Workers Act, The Beedi and Cigar Workers Act 1966, The Child Labour (Prohibition and Regulation) Act 1986, and The Mine Act 1952. Broadly speaking these sectoral laws either abolish or prohibit an abominable practice like bonded labour or they seek to regulate exploitative conditions by regulating working hours and conditions of service. A recent trend has been to seek the creation of a welfare fund through the collection of a levy from which medical benefits or pension provisions are made. Workers and management may contribute and attempt to set up tripartite boards for implementation of welfare benefits. In some states like Kerala a large number of such boards have

already been set up to take care of welfare in different sectors of employment. Another contemporary effort is to provide an umbrella statute to take care of employment conditions and social welfare benefits for all unorganised sections. Common central legislation for all agricultural workers is also on the anvil. Many powers are vested in quasi-judicial authorities, labour courts, and magistrates courts. The power of review is in the High Courts and finally in the Supreme Court. The general experience, with the occasional exception, is unbearable delay. Even where statutes prescribe reasonable time limits, they are not adhered to. Frustration with labour-related justice is heightened by these unlimited delays. A case of dismissal takes almost ten years for the labour court to decide and if the parties decide to seek judicial review in the higher courts there can be unlimited delay. For the unorganised sector a renewed attempt to focus on the core labour standard identified by the ILO in its Declaration on Fundamental Rights at Work would still be worthwhile, especially if we take steps to ensure the implementation of the first of those core labour standards namely the freedom of association and the right to collective bargaining. It is only through the organisation of potential beneficiaries that we can hope for some benefits at least to percolate down into the hands of the needy.

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