Article (July-2019)

Articles

The dynamic nature of Natural justice

P. Soma Raju

Designation : -   Specialist HR, IR and Labour Laws

Organization : -  Management Consultant, Hyderabad

01-Jul-2019

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The concept of natural justice, vibrant and dynamic in nature, quite often comes up for consideration by the judiciary in a number of cases. It is reverberating presently in the corridors of judicial institutions and has gained significance due to for and against arguments in the context of supreme courts internal enquiry on the complaint of sexual harassment against Chief Justice of India. The subject of Principles of natural Justice is very complicated and it is difficult to comprehend its nature in its totality. Without dwelling much on the supreme courts nature of enquiry, and its details-an attempt is made to discuss the fundamental nature of natural justice and its application to domestic enquiries in the industrial establishments governed by labour laws. There are many articles, discussions and write ups on the subject of principle of natural justice in the past. Every time, the subject appears new and always we find developments in the interpretation and judgments of the judicial courts wherever and whenever principles of natural justice is dealt with in domestic enquiry cases. The understanding and interpretation changes on the basis of facts and circumstances of each case. The High courts and supreme court again and again reiterated in their judgments that there is no straight jacket formula to fit into the concept of natural justice. It should be understood and applied with reference to the peculiarities of each case.

The concept of principles of natural justice evolved over a period and has been evolving from time to time. Human Resource Professionals dealing with Industrial relations and disciplinary matters are well aware of the complexity in understanding the principles of natural justice. There is no precise definition nor there any comprehensive and exhaustive guidelines that fit into all cases. Many disciplinary cases have been struck down by the courts on the grounds of violation of principles of natural justice. The managements of Industrial Establishments in spite of having expert resources available at their command still fail to conduct domestic enquiries in accordance with the principles of natural justice thus leading to losing cases due to failure to comply with principles of natural justice. Many HR professionals confess that in spite of having decades of experience in the profession and dealt with umpteen numbers of disciplinary cases, they always feel inadequate or insufficient in their knowledge on principles of natural justice.

Concept of Principles of Natural Justice

Conceptually the principles of natural justice rest on the foundation of three fundamental pillars. They are Principle of fairness : It underlines the importance of being fair in the approach while dealing with the delinquent and affording him/her an opportunity to defend his/her case. No undue pressure is to be exerted. The complainant and the Delinquent should be treated equally. Their versions recorded in the enquiry should be given fair treatment by the enquiry officer or Tribunal while analyzing the evidence, material on record and arrive at findings/Conclusions objectively with proper appreciation.

Principle of due process : Procedure contemplated for conducting enquiry should be in consonance with the law or the rules and regulations. The Propriety and the correctness of the procedure being followed should stand the judicial scrutiny in order to establish that due process is followed in the enquiry. The tribunal or enquiring agency is bound by the rules and comply fully with them in letter and spirit to bring on record that due process is followed in the enquiry.

The third principle is Principle of Impartiality.

To consider an enquiry as fair and establish its credibility, following impartiality in conducting the enquiry is not negotiable. Impartiality is a cornerstone on which the edifice of fair enquiry stands tall. It is on this basic principle, the courts again and again held that to consider the enquiry as fair it should be conducted by a neutral person who treats all parties before him equals without any bias.

Principles of Natural Justice : Fundamentally and principally the basic principles of natural justice recognized and accepted are (1) No man should be condemned unheard (Audi alteram partem), (2) No man should be judge in his own cause. (Nemo debet esse Judex in propria causa) As it is said earlier, principles of natural justice have been evolving from time to time. Way back in 1963 the supreme court in Sur Enamel and stamping world Ltd Vs Their workmen 1963 92) LLJ 367 (SC) held that an enquiry cannot said to have been properly held unless (1) The employee proceeded against has been informed of clearly the charges leveled against him. (2) The witnesses are examined-ordinarily in the presence of the employee in respect of the charges. (3) The employee is given a fair opportunity to cross examine the witnesses. (4) The employee is given a fair opportunity to examine his own witnesses including himself in his defense if he so wishes on any relevant matter and (5) the enquiry officer records his findings for the same in his report. The High Courts and Supreme Court in plethora of judgments elaborated and interpreted the principles of natural justice. It is not limited to India alone and the countries where rule of law is followed, judicial courts went on expanding the canvass of natural justice, deduced and propounded by summarizing them as follows.

Audi alteram partem - Hear the other side, Hear both sides.

Nemo dat condemnari debet inanditus nec summonitus No one should be condemned un heard or un summoned.

Nemo prohibeter plures megotittioners sive artes exercere - No one can be prohibited from making use of several defences.

Nemo tenetur seipsum accusare - No one can be compelled to criminate himself.

Nemo tenetur seipsum prodere - No man is bound to betray himself.

Nemo debet esse judex in propria causa - No man ought to be a judge in his own cause.

Nemo debet esse testis in sua propria causa - No one ought to be a witness in his own cause.

Nemo protestt esse simul actor et judex - No one at once can be a suitor or judge.

Judis (nostrum) est judicare secundum allegata et probata It is the duty of a judge to determine according to what is alleged and proved.

Non refert quid motum sit judice; si noium non sit in forma judicii - No judge should import his private knowledge of the facts into a case. It matters not what is known to the judge, if it is not known to him judicially.

Actore incumbit onus probandi - The burden of proof lies on the plaintiff or the complainant. No one ought to be a witness in his own cause.

Probandi necessitas incumbit illi qui agit - The necessity of proving lies upon him who brings the charge.

Nihil habet forum ex scena - The court has nothing to do with what is not before it.

Qui aliquid statuerit, parte inandita altera, aequum licet dexerit hand aequum facerit - He who determines any matter without hearing both sides, though he may have decided right, has not done justice. It is also expressed in terms "Justice not only be done, but must manifestly and undoubtedly seen to be done.

Ne seipsum praecipites in diseriminem - Judge not too hastily.

Culpa poena par esto - Let the punishment be proportionate to the offence.

Nemo bis punitar vexatur pro sodem delicto - No man is punished twice for the same offence.

Nemo debet bis vexari pro una et eadem causa - No one ought to be vexed for one and the same offence.

The Principles of natural justice summed up supra are the essence and sum total of review of judicial pronouncements of the Indian as well as international courts. They cannot be treated as complete and final. Principles of natural justice are ever dynamic and expanding. This dynamic nature of the concept of natural justice often give scope for raising issues and concerns by the delinquent worker/trade unions while participating in the domestic enquiries. Some of the important issues/concerns frequently rose in the domestic enquiries by the delinquent worker/trade unions are deliberated/discussed as under.

Neutral Person as Enquiry Officer : To establish the principles of impartiality, appointment of a neutral person as enquiry officer is an essential prerequisite. The question is how we call a person neutral. It is clear as held by the courts that no man ought to be a judge in his own case. Anyone other than a person falling in the above category can be treated as neutral person. The supreme court in Saran Motors Pvt Ltd Vs Vishwanath1964 11 LLJ 139 SC discussed and decided the issue of whether the officer employed by the company or the lawyer appointed by the employer as enquiry officer constitute bias. Chief Justice Gajendragadkar held "It is impossible to accept the argument that because a person is sometimes employed by the employer as lawyer, he becomes incompetent to hold a domestic enquiry. It is well known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer; it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously unsound to take the view that a lawyer, who is not a paid officer of the employer, is competent to hold the enquiry, because he is the employer's lawyer and is paid remuneration for holding the enquiry - the reason given by the tribunal for ignoring the finding of the domestic enquiry must be reversed". This view of the Supreme Court still holds good. Therefore any person whether officer of the employer or lawyer appointed by the employer are competent to conduct enquiry provided he is neither a complainant nor a witness to the incident.

Assistance of Lawyer in the Enquiries

Domestic enquiries are simple fact finding enquiries wherein Evidence Act is not applicable to its proceedings. To protect the very nature of fact finding in the domestic enquiries, it is advisable to discourage the participation of advocates/lawyers on behalf of the parties. Recently in Hindustan Uni lever Ltd VS Prashanth 2019 LLR 419 Bombay court held that "when the enquiry is to be held to prove misconduct on the basis of Standing Orders of the company wherein provision of assistance of lawyer to be engaged by the delinquent employee in enquiry proceedings, is not provided, such demand by the workman, being not having support of any absolute right would not be justified. Demand of engagement of lawyer by the delinquent employee in enquiry proceedings, without any peculiarity or necessity shown and proved justifying his demand is not justified. For justifying the demand of assistance of lawyer in enquiry proceedings, the workmen has to show that without assistance of lawyer any of his valuable right or principles of natural justice would be violated on the basis of such peculiar facts and circumstances. The judicial courts have also held in a number of cases that if the presenting officer or Management Representative in the enquiry is legally trained person, the demand of the delinquent employee for assistance of a lawyer is justified. The courts have further clarified that a person with mere possession law qualification cannot be treated as legally trained person. To consider a person as legally trained, he must be a law qualified person dealing with cases of the employer in courts.

Furnishing Enquiry Report : The basic condition principle of fair and unbiased enquiry is to record the evidence in the presence of delinquent employee and giving him opportunity to cross examination of the management witnesses. Further copies of the documents or records relied upon in the enquiry or submitted by the witnesses should be supplied to the delinquent employee for giving him opportunity to well prepare for his defence. To be more fair and transparent, copy of the enquiry report should also be forwarded to the employee with a request to offer his comments if any and his views should also be considered provided they are relevant and valid before taking a final decision by the management on the acceptance or otherwise of the enquiry report. In fact this exercise will enable the management to scrutinize the enquiry report with reference to bias and perverse findings in the enquiry. It is also established and accepted Judicial requirement that the enquiry should not be an empty formality. There is another view wherein Supreme Court in SK Singh Vs. Central bank of India 1994 LLR 162 SC held that where the workman was unable to show any prejudice by non supply of report, the domestic enquiry will not be vitiated.

Second show cause Notice Proposing punishment

Whether a second show cause notice is part of principles of natural justice is an issue of legal debate. Courts gave contrary decisions in the matter. Issuance of second show cause notice has been considered by the Supreme Court in a number of cases. It is confirmed that if rules provide for such a step, it should be followed. Union of India vs. Mohd Ramzan Khan 1991(1) SC 111. If such a step is not provided in the rules, non issuance of second show cause notice will not automatically amount to violation of principles of natural justice. The very purpose of second show cause notice is to afford an opportunity to the delinquent workman to express his views on the proposed punishment. One of the principles of natural justice requires that the management should award punishment proportionate to the gravity of misconduct. The views/comments of the delinquent employee on the proposed punishment in fact provides an opportunity to the employer to scrutinize and check whether the punishment is proportionate and whether it stands the scrutiny of courts when it is reviewed as per powers conferred to labour court under section 11A of the Industrial disputes Act 1947. It is recommended that irrespective of the rules provided for such a step or not, issuance of second show cause notice must be considered a requirement under the principles of natural justice. All precautions should be taken at every step to avoid losing cases on the grounds non compliance with the principles of natural justice.

Evidence and Standard of Proof : The Evidence Act is not applicable to the domestic enquiry. Strict rules and technicalities followed in the regular courts in the process of trial/enquiry are not applicable to the domestic enquiry. It needs no elaboration. Whether enquiry officer has power to summon the documents is answered positively in ITC Limited Guntur VS Labour Courts and others Guntur 1996(3) ALT 77. Similarly the parties have right to lead additional evidence or evidence afresh if the enquiry is found to be defective or invalid is answered assertively provided the parties ask for an opportunity to such evidence in the course of proceedings before the Labour Court.

Further the standard of proof required in a domestic enquiry is that of preponderance of probability and not proof beyond reasonable doubt as is required in the criminal cases. 1997 (4) ALT 758 Singareni Colleries Limited VS Industrial Tribunal Hyderabad. Criminal proceedings and domestic enquiry are independent and both can go parallel. One will not be a bar on the other and the doctrine of double jeopardy has no application. 1993 LIC 2500 (A.P) NH Lax man VS Central government Railway.

Impositon of Punishment : To punish is the function of the management. However this function cannot be carried out arbitrarily. It is always subject to the rules, law and principles of natural justice. While deciding on the quantum of punishment the employer shall consider (1) Gravity of misconduct (2) past record of the employee and (3) any extenuating or mitigating factors. The Labour court will always examine whether the punishment is shockingly disproportionate to the misconduct or not and decide on their requirement to intervene under the powers conferred under section 11A of the Industrial Disputes Act.

The Principles of natural justice are very wide with vast scope for interpretation at every step in the enquiry in the absence of any precise and specific definition; it is really a big challenge to the employers to conduct domestic enquiries and needs extra precautions to comply with the judicial scrutiny.