Full Judgment Text
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CASE NO.:
Appeal (civil) 4335 of 2006
PETITIONER:
The Management of National Seeds Corporation Ltd.
RESPONDENT:
K.V. Rama Reddy
DATE OF JUDGMENT: 29/09/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 17707 of 2004)
ARIJIT PASAYAT, J.
Leave granted.
Appellant calls in question legality of the judgment
rendered by a Division Bench of the Karnataka High Court
directing the Management of M/s. National Seeds Corporation
Ltd. (hereinafter referred to as the ’Corporation’) to consider
afresh the respondent’s prayer for being represented by a legal
practitioner and decide whether same was acceptable or not.
Background facts in a nutshell are as follows:
Respondent was working as Assistant Grade II Area
Office at Hassan, Karnataka. It was noticed that the
respondent and one G. Ansar Pasha, Seed officer (formerly
Area Manager of the Corporation, Hassan) were responsible for
huge loss of more than Rupees 63 lakhs because of
misappropriation by them. Accordingly complaint was lodged
with the Superintendent of Police, CBI, Ganganagar,
Bangalore. Simultaneously departmental proceedings were
initiated by issuing charge sheets proposing major penalty.
The departmental proceedings were initiated on 12.3.2003.
On 16.4.2003 Inquiry Officer and Presiding Officer were
appointed to inquire into the charges framed as the
respondent denied the charges. Respondent sought permission
of the disciplinary authority to take assistance of one Shri V.
Vishwanathan who was a retired Assistant Manager of the
Corporation. The prayer to take his assistance was rejected by
the Corporation, in view of Rule 31(7) of National Seeds
Corporation (Conduct, Discipline and Appeal) Rules, 1992 (in
short the ’Rules’). Respondent challenged the order by filing
Writ Petition No.28503 of 2003 before the Karnataka High
Court. Challenge was made to legality of Rule 31(7) of the
Rules on the ground that the provision denied opportunity to a
delinquent employee to avail services of the person of his
choice. The High Court did not accept the contention and
dismissed the writ petition. After the dismissal of the writ
petition, respondent made a representation on 15.11.2003 for
permission to take assistance of a legal practitioner. The said
request was turned down by order dated 21.11.2003. Against
the said order respondent filed Writ Petition No.50793 of 2003,
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again challenging that part of rule which permitted
engagement of a legal practitioner only when the presenting
officer appointed by the disciplinary authority a legal
practitioner or the disciplinary authority having regard to the
circumstances of the case so permitted. Counter-affidavit was
filed by the Corporation taking the stand that the same issues
were earlier raised in the previous writ petition which was
dismissed. The High Court allowed the writ petition by
observing that even though presenting officer was not a legal
practitioner, yet the disciplinary authority could permit
engagement of a legal practitioner having regard to the
circumstances of the case.
In support of the appeal learned counsel for the
appellant-Corporation submitted that the law relating to
engagement of legal practitioner in a disciplinary proceeding is
too well settled. The High Court accepted that there was no
legal right to ask for engagement of a legal practitioner.
Having accepted this legal position, the High Court erred in
holding that disciplinary authority taking into account the
factual scenario could permit engagement of legal practitioner.
In fact no question of law was involved in the department
proceedings. The allegations related to misappropriation and
the factual position was within the knowledge of the
respondent. It has not been explained us as to how a legal
practitioner would be in a better position to assist the
delinquent officer in respect of factual aspects.
In response, learned counsel for the respondent
submitted that though engagement of legal practitioner cannot
be demanded as a matter of right yet a discretion is vested on
the disciplinary authority to permit engagement of a legal
practitioner having regard to the circumstances of the case.
The rival submissions have to be tested in the
background of Rule 31(7) of the Rules. The same reads as
follows:
"Rule 31(7) - The employee may take the
assistance of any other employee working in
the particular unit where the employee is
working/was working at the time of
happenings of alleged changes to which the
inquiry relates or where the inquiry is being
conducted to present the case on his behalf but
may not engage a legal practitioner for the
purpose unless the presenting officer appointed
by the disciplinary authority is a legal
practitioner or the disciplinary authority having
regard to the circumstances of the case, so
permits."
The law in this country does not concede an absolute
right of representation to an employee in domestic enquiries as
part of his right to be heard and that there is no right to
representation by somebody else unless the rules or regulation
and standing orders, if any, regulating the conduct of
disciplinary proceedings specifically recognize such a right and
provide for such representation (See N. Kalindi v. Tata
Locomotive & Engg. Co. Ltd. (AIR 1960 SC 914), Dunlop
Rubber Co. (India) Ltd. v. Workmen (AIR 1965 SC 1392),
Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi
(1993 (2) SCC 115), and Indian Overseas Bank v. Indian
Overseas Bank Officers’ Association and Another (2001(9) SCC
540).
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The basic principle is that an employee has no right to
representation in the departmental proceedings by another
person or a lawyer unless the Service Rules specifically provide
for the same. The right to representation is available only to
the extent specifically provided for in the Rules. For example,
Rule 1712 of the Railway establishment Code provides as
under:
"The accused railway servant may present his
case with the assistance of any other railway
servant employed on the same railway
(including a railway servant on leave
preparatory to retirement) on which he is
working."
The right to representation, therefore, has been made
available in a restricted way to a delinquent employee. He has
a choice to be represented by another railway employee, but
the choice is restricted to the Railway on which he himself is
working, that is, if he is an employee of the Western Railway,
his choice would be restricted to the employees working on the
Western Railway. The choice cannot be allowed to travel to
other Railways.
Similarly, a provision has been made in Rule 14(8) of the
Central Civil Services (Classification, Control & Appeal) Rules
1965, where too, an employee has been given the choice of
being represented in the disciplinary proceedings through a
employee.
In N. Kalindi’s case (supra) a three-Judge Bench of this
Court observed as under:
"Accustomed as we are to the practice in the
courts of law to skillful handling of witnesses
by lawyers specially trained in the art of
examination and cross examination of
witnesses, our first inclination is to think that
a fair enquiry demands that the person
accused of an act should have the assistance
of some person, who even if not a lawyer may
be expected to examine and cross-examine
witnesses with a fair amount of skill. We have
to remember however in the first place that
these are not enquiries in a court of law. It is
necessary to remember also that in these
enquiries, fairly simple questions of fact as to
whether certain acts of misconduct were
committed by a workman or not only fall to be
considered, and straightforward questioning
which a person of fair intelligence and
knowledge of conditions prevailing in the
industry will be able to do will ordinarily help
to elicit the truth. It may often happen that
the accused workman will be best suited, and
fully able to cross examine the witnesses who
have spoken against him and to examine
witnesses in his favour.
It is helpful to consider in this
connection the fact that ordinarily in
enquiries before domestic tribunals the
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person accused of any misconduct conducts
his own case. Rules have been framed by
Government as regards the procedure to be
followed in enquiries against their own
employees. No provision is made in these
rules that the person against whom an
enquiry is held may be represented by
anybody else. When the general practice
adopted by domestic tribunals is that the
person accused conducts his own case, we
are unable to accept an argument that
natural justice demands that in the case of
enquiries into a charge-sheet of misconduct
against a workman he should be represented
by a member of his Union. Besides it is
necessary to remember that if any enquiry is
not otherwise fair, the workman concerned
can challenge its validity in an industrial
dispute.
Our conclusion therefore is that a
workman against whom an enquiry is being
held by the management has no right to be
represented at such enquiry by a
representative of his Union; though of course
an employer in his discretion can and may
allow his employee to avail himself of such
assistance."
(Emphasis supplied)
In another decision, namely, Dunlop Rubber Company’s
case (supra), it was laid down that there was no right to
representation in the disciplinary proceedings by another
person unless the Service Rules specifically provided for the
same.
The matter again came to be considered by a three-
Judge Bench of this Court in Crescent Dyes’s case (supra),
Ahmadi, J. (as he then was) in the context of Section 22(ii) of
the Maharashtra Recognition of Trade Unions and Unfair
Labour Practices Act, 1971, as also in the context of domestic
enquiry, upheld the statutory restrictions imposed on
delinquent’s choice of representation in the domestic enquiry
through an agent.
The earlier decisions in N. Kalindi’s case (supra); Dunlop
Rubber Company’s case (supra) and Brooke Bond India (P)
Ltd. v. Subba Raman (S.) and another, (1961 (2) LLJ417), were
followed and it was held that the law in this country does not
concede an absolute right of representation to an employee as
part of his right to be heard. It was further specified that there
is no right to representation as such unless the Company, by
its Standing Orders, recognises such a right. In this case, it
was also laid down that a delinquent employee has no right to
be represented in the departmental proceedings by a lawyer
unless the facts involved in the disciplinary proceedings were
of a complex nature in which case the assistance of a lawyer
could be permitted.
We have seriously perused the judgment of the High
Court which, curiously, has treated the decision of this Court
in Crescent Dyes’s case (supra) as a decision in favour of the
respondent No.1. The process of reasoning by which this
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decision has been held to be in favour of respondent No.1 for
coming to the conclusion that he had a right to be represented
by a person who, though an office-bearer of the Trade Union,
was not an employee of the appellant is absolutely incorrect
and we are not prepared to subscribe to this view.
Consequently, we are of the opinion that the judgment passed
by the High Court in so far as it purports to quash the order of
the Appellate Authority, by which the Draft Standing Orders
were certified, cannot be sustained.
The position as afore-noted was reiterated in Bharat
Petroleum Corporation Ltd. v. Maharashtra General Kamgar
Union & Ors. (JT 1998 (8) SC 487).
Though it is correct, as submitted by learned counsel for
the respondent, that even if the presenting officer is not a legal
practitioner, the disciplinary authority having regard to the
circumstances of the case may permit engagement of a legal
practitioner. But it would depend upon the factual scenario.
Learned counsel for the appellant-Corporation has
brought to our notice office memorandum dated 21.11.2003
by which the prayer to engage a legal practitioner to act as a
defence assistant was rejected. Reference was made to the
rules, though no specific reference has been made to the
discretion available to be exercised in particular
circumstances of a case. The same has to be noted in the
background of the basis of prayer made for the purpose. The
reasons indicated by appellant for the purpose are (a) amount
alleged to have been misappropriated is Rs.63.67 lakhs (b)
number of documents and number of witnesses are relied on
by the respondent, and (c) the prayer for availing services of
the retired employee has been rejected and the respondent is
unable to get any assistance to get any other able co-worker.
None of these factors are really relevant for the purpose of
deciding us as to whether he should be granted permission to
engage the legal practitioner. As noted earlier, he had to
explain the factual position with reference to the documents
sought to be utilized against him. A legal practitioner would
not be in a position to assist the respondent in this regard. It
has not been shown as to how a legal practitioner would be in
a better position to assist the respondent so far as the
documents in question are concerned. As a matter of fact, he
would be in a better position to explain and throw light on the
question of acceptability or otherwise and the relevance of the
documents in question. The High Court has not considered
these aspects and has been swayed by the fact that the
respondent was physically handicapped person and the
amount involved is very huge. As option to be assisted by
another employee is given the respondent, he was in no way
prejudiced by the refusal to permit engagement of a legal
practitioner. The High Court’s order is, therefore,
unsustainable and is set aside.
Appeal is allowed but in the circumstances without any
order as to costs.