TaxTMI 
TaxTMI 
2015 (6) TMI 476
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.... considered the issue of validity of the domestic enquiry and by an order dated 22nd August, 2001, held that the participation of the Presenting Officer as a witness in the domestic enquiry rendered the enquiry as well as the entire proceeding inoperative and without jurisdiction. In passing such order the Ld. Tribunal relied on two decisions of this Court:- (i)-Sarajit Coomer Mazumder-vs.-Calcutta Dock Labour Board & Ors. reported in Cal. LT. 1998 (1) HC 431. (ii) Mohd. Miya v. State of West Bengal & Ors. reported in 2000 (86) FLR 1. (3) The appellant challenged the said order of the Ld. Tribunal by way of a writ petition being WP NO. 2392 of 2001. (4) The Ld. Single Judge held that as the Presenting Officer appeared as a witness in the domestic enquiry, the principle of natural justice was violated and, therefore, finding of the Enquiry Officer was liable to be set aside and the order of punishment of dismissal imposed on the employee should be quashed. (5) Being aggrieved, the appellant preferred the above appeal. (6) The Hon'ble Division Bench noted the decisions rendered by two Ld. Single Judges of this Court in the cases of Sarajit Coomer Mazumdar (supra....
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....rlier Division Bench decision in the case of Bharat Cocking Coal (supra) was not cited before the later Division Bench which decided the case of Life Corporation of India (supra). However, there is a direct conflict between the said two Division Bench judgments and, accordingly, the Division Bench hearing the above appeal as referred the following question of law to a Larger Bench:- "As to whether mere participation of the Presenting Officer as a witness in the domestic enquiry is contrary to the principles of natural justice and renders the enquiry and the entire proceedings ineffective and without jurisdiction even in the absence of proof of prejudice to the employee concerned?" (11) Before expressing our opinion on the question referred to us, we may note the views of some other High Courts in this regard. (12) In the case of Management of Glaxo India Ltd., Madras-vs.- Presiding Officer, Labour Court, Guntur reported in 1993 (1) LLJ 626, the Andhra Pradesh High Court held that there was nothing wrong or irregular in the Presenting Officer going to the box as a witness for the management. In paragraph 19 of the judgment the High Court observed as follows-: "19. Second....
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....ority. The order of punishment was held to be null and void as being in violation of the legal maxim nemo debet esse judex in propria causa (no man shall be a judge in his own cause). We do not find the relevance of this decision in the context of the present reference. (14) Another decision of the Hon'ble Supreme Court in the case of Rattan Lal Sharma-vs.-Managing Committee, Dr. Hari Ram (Co- Education) Higher Secondary School reported in AIR 1993 SC 2155 was cited before us. In this case also a member of the Enquiry Committee deposed as a witness in support of the management's case. The Supreme Court reiterated that this was in breach of the principles of natural justice, one wing of which is that no man can be a judge in his own cause. The Supreme Court set aside the order of dismissal of the delinquent employee. This case also has no application in the present context. (15) Another decision of the Hon'ble Supreme Court that was cited before us was in the case of Uma Nath Pandey-vs.-State of U.P reported in 2009 (1) CLJ (SC) 349. In that case the Hon'ble Supreme Court discussed the meaning of 'natural justice' and the 'useless formality theory&#....
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....loyee proceeded against has been informed clearly of all the charges levelled against him. (ii) The witnesses are examined - ordinarily in the presence of the employee - in support of the charges. (iii) The employee is given a fair opportunity to cross-examine the management's witnesses. (iv) The employee is given a fair opportunity to examine his witnesses including himself in his defence if he so wishes on any relevant matter and (v) The enquiry Officer records his findings with reasons for the same in his report. (19) Ultimately the entire issue boils down to the question of prejudice. If the delinquent employee has suffered any prejudice by reason of the Presenting Officer acting as a witness on behalf of the management, the enquiry proceeding will possibly be held to be vitiated. The prejudice must be real prejudice as opposed to formal prejudice, affecting some substantial legal right of the employee. Naturally, the burden is on the employee to establish such prejudice. (20) The object of holding an enquiry proceeding is to give the delinquent employee a reasonable opportunity to prove his answers and to defend himself against the charges levelled against him. A ....