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PETITIONER: M/S CIPLA LTD.  & ORS.

       Vs.

RESPONDENT: RIPU DAMAN BHANOT & ANR.

DATE OF JUDGMENT:       12/04/1999

BENCH: S.Saghir Ahmad, S.Rajendra Babu

JUDGMENT:

     S.SAGHIR AHMAD, J.

     Leave granted.

     The  appellant is a pharmaceutical company engaged  in manufacturing   and  marketing  of  various   pharmaceutical products.

     The   respondent   was   appointed    as   a   Medical Representative  of  the  appellant with his  headquarter  at Ludhiana.  Under the jobs assigned to the respondent, he was to  visit the doctors, hospitals and chemists to promote the sale   of  medicines  manufactured   and  marketed  by   the appellant.   One  of  the duties of the  respondent  was  to submit  a daily report of the visits made by him  specifying the persons visited and the samples or promotional materials distributed  by him.  In the daily report of 31st of August, 1989,  the respondent indicated that he had visited one  Dr. K.R.   Singla  at  Ropar.  He also indicated  in  his  daily report that he had visited M/s Singla Medicos, Ropar to whom he  distributed various samples of the appellant’s products. It  was  later discovered by the appellant that Dr.   Singla had  already died on 7th of August, 1989, having been killed by  the terrorists and that M/s Singla Medicos at Ropar  had been closed from 08.08.1989 onwards.

     Rule 14 of the Service Rules applicable to the Medical Representatives employed in the appellant’s Company provides as under:-

     "14.  MISCONDUCT

     (d)  Fraud  or  dishonesty  in  connection  with   the Company’s business or property.

     (1)  Submission of false daily reports or irregularity in submission of daily reports."

     Since  the  respondent had submitted a report that  he had  visited  Dr.  Singla on 31.8.1989 which  was  obviously false  as  Dr.   Singla  had  already  been  killed  by  the terrorists  on  7th of August, 1989, a charge-sheet for  the misconduct,  specified  in  Rule 14, was issued  to  him  on 23.12.1989  on the basis of which a departmental enquiry was

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held against the respondent which was completed on 18.5.1990 and  the findings recorded by the Enquiry officer were  that the  charges levelled against him were fully proved.  On the basis  of the above findings, the services of the respondent were  terminated  by order dated 18.6.1990.  This order  was challenged  by the respondent in the departmental appeal  on 26.6.1990  but  the  appeal was dismissed.   The  respondent thereafter  raised an industrial dispute which was  referred to  the  Labour  Court, Ludhiana on  10.4.1991.   While  the matter  was  pending before the Labour Court, the  appellant moved  an application on 10.3.1995 that since the respondent was only a Medical Representative, he was not covered by the definition  of  "workman"  as laid down  in  the  Industrial Disputes  Act, 1947 and consequently the proceedings  before the  Labour  Court  were wholly without  jurisdiction.   The preliminary  objection raised by the appellant was  accepted by  the  Labour Court which, by its Award dated  02.05.1995, held   that  the  respondent  was   not  a   "workman"   and consequently   dismissed  the   reference.   The  respondent challenged this Award before the Punjab & Haryana High Court and  by  its judgment dated 12.08.1996, the High  Court  set aside  the  Award and remanded the case back to  the  Labour Court  for  deciding the matter afresh.  On 22.12.1997,  the Labour  Court decided another preliminary issue which was to the  effect "whether a fair and proper enquiry was held" and it  was  held that fair and proper enquiry was not held  and the  termination  order passed by the appellant  was  wholly illegal  and  void as it was found by the Labour Court  that the respondent, in spite of his request, was not allowed the assistance  of  an advocate.  It was further found that  the termination order was passed by an authority who was not the appointing  authority  of the respondent and, therefore,  it was  bad.   The appellant, thereafter, filed  Writ  Petition No.1010  of 1998 in the Punjab & Haryana High Court but  the High  Court  by its judgment dated 23.05.1998 dismissed  the Writ  Petition.   It  is  in these  circumstances  that  the present appeal has been filed in this Court.

     We have heard the learned counsel for the parties.

     Mr.   Ashok Desai, learned senior counsel appearing on behalf of the appellant has contended that since the Service Rules  applicable  to the respondent  specifically  provided that  he  can have the assistance of a co-representative  in the  departmental  enquiry,  the Labour Court was  wrong  in holding  that the respondent was entitled to the  assistance of an advocate.

     Learned  counsel appearing on behalf of the respondent has  contended  that  though  the Service  Rules  allow  the assistance  of  a  co-representative   in  the  departmental enquiry,  the  respondent, nevertheless, was entitled to  be represented  by  a practising advocate in  the  departmental proceedings  as the questions involved in those  proceedings were  complicated  which  could  not   be  tackled  by   the respondent  as  he was not aware of the basic principles  of legal  proceedings  or  their  implications,  or,  for  that matter,  the  manner in which those proceedings were  to  be conducted.

     The relevant Service Rules are quoted below:-

     "16.   a)  The Representative against whom an  enquiry

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has  to  be  held  shall be given  a  charge-sheet,  clearly setting  forth  the circumstances appearing against him  and requiring  explanation.  He shall be given an opportunity to answer  the charge and be permitted to be defended by a  co- Representative  of  his  choice.  Except for reasons  to  be recorded  in writing by an Officer holding the enquiry,  the Representative  shall  be permitted to produce witnesses  in his defence and to cross-examine witnesses on whose evidence the  charge  rests.   A  concise  summary  of  the  evidence produced  by either side and the Representative’s plea shall be recorded.

     b) A Representative against whom action is proposed to be  taken  under  Service Rule 16 may be  suspended  pending enquiry.   A Representative who is suspended shall be paid a subsistence allowance during the period of suspension at the rate  of  50% of his salary.  The order of suspension  shall take  effect immediately on the receipt of the communication to the Representative.  If, as a result of the enquiry held, or  explanation  tendered,  it is decided not  to  take  any action against the Representative he shall be deemed to have been  on  duty and shall be entitled to full salary for  the period of suspension.

     c) In awarding punishment under the Service Rules, the Manager  shall  take  into  account   the  gravity  of   the misconduct,   the   previous   record,  if   any,   of   the Representative,   any  other   extenuating  or   aggravating circumstances that may exist.

     d)  If  a Representative refuses to accept  a  charge- sheet, order or any other communication issued in accordance with the Service Rules and provided that the same is sent by registered  post  acknowledgement due and if he  refuses  to acknowledge the receipt of the communication and if he fails to  attend  the enquiry, the enquiry shall be conducted  ex- parte  and  the Representative shall be responsible for  the consequences thereof."

     These  Rules  indicate that a person against whom  the departmental  proceedings  have  been   initiated  will   be entitled  to avail of the assistance of a  co-representative of his choice in those proceedings.

     In   Kalindi   and  Ors.    vs.   Tata  Locomotive   & Engineering  Company  Ltd., AIR 1960 SC 914 = 1960  (3)  SCR 407,  it was held that a workman against whom a departmental enquiry  is  held  by  the Management has  no  right  to  be represented  at  such enquiry by an outsider, not even by  a representative of his Union though the Management may in its discretion  allow the employee to avail of such  assistance. So  also in Dunlop Rubber Company vs.  Workmen, 1965 (2) SCR 139  = AIR 1965 SC 1392 = 1965 (1) LLJ 426, it was laid down that  an  employee  has no right to be  represented  in  the disciplinary  proceedings  by  another   person  unless  the Service  Rules  specifically  provided   for  the  same.   A Three-Judge  Bench  of  this  Court  in  Crescent  Dyes  and Chemicals Ltd.  vs.  Ram Naresh Tripathi, (1993) 2 SCC 115 = 1992  Suppl.   (3) SCR 559, laid down that the right  to  be represented   in  the   departmental  proceedings  initiated against a delinquent employee can be regulated or restricted by the Management or by the Service Rules.  It was held that the   right  to  be  represented  by  an  advocate  in   the

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departmental  proceedings can be restricted and regulated by statutes  or  by  the Service Rules including  the  Standing Orders,  applicable  to the employee concerned.   The  whole case  law  was  reviewed by this Court in  Bharat  Petroleum Corporation  Ltd.   vs.  Maharashtra Genl.  Kamgar  Union  & Ors.,  (1999)  1 SCC 626, and it was held that a  delinquent employee  has  no right to be represented by an advocate  in the  departmental  proceedings  and that if a  right  to  be represented   by  a  co-workman  is   given  to   him,   the departmental  proceedings  would  not be bad  only  for  the reason  that the assistance of an advocate was not  provided to him.

     The  finding  of  the Labour Court that the  order  of termination was bad for the reason that it was not issued by the  Personnel  Manager who was the appointing authority  of the  respondent  but  was  issued  by  the  General  Manager (Marketing)  who was not competent cannot be sustained as in recording  this finding, the Labour Court does not refer  to Service  Rules  which  ought  to have been done  as  it  was pointed  out to him that the General Manager (Marketing) was an Officer superior in rank to the Personnel Manager but the Labour Court brushed aside the submission on the ground that nothing  was brought on record to indicate that the  General Manager  (Marketing)  was  superior  in  rank.   We  refrain ourselves  from making any observation on the merit of  this question  as the whole matter is being remanded for deciding these  questions afresh.  We would only say that the  Labour Court  should  decide all the issues together and shall  not split  the issues into preliminary or non-preliminary issues so that the proceedings may come to an end at the earliest.

     In  view of the above, the Interim Award passed by the Labour Court cannot be sustained nor can the judgment passed by  the  High Court be upheld.  The appeal  is  consequently allowed.   The  Interim Award passed by the Labour Court  as upheld  by the High Court is set aside and the Labour  Court is  directed to decide the whole matter afresh in the  light of the observations made above and in accordance with law.