DOMESTIC ENQUIRY-DEFENCE ASST.CAN CROSS THE MGT.WITNESS-K.CHANDRU

(REPORTED IN 2010-1-MLJ-427)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.10.2009
CORAM:
THE HON BLE MR.JUSTICE K.CHANDRU
W.P.No.18823 of 2009 and
M.P.Nos.1 and 2 of 2009

S.Selvam ... Petitioner

Vs


1.The Deputy Inspector General of Police,
Salem Range, Salem.

2.The Deputy Superintendent of Police,
Velur Sub Division,
Namakkal District. ... Respondents

Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records in respect of the proceedings of the 2nd respondent dt 20.7.2009 in PRNO.28/B1/09/Salem/PR No.20/G1/2009 DPO and quash the same consequently direct the 2nd respondent herein to permit the petitioner herein to engage a lawyer to proceed with the oral enquiry in respect of the Charge Memo dt._03.2009 issued by the 1st respondent herein in his proceedings in PR 28/B1/2009.
For Petitioner : Mr.R.Nalliyappan
For Respondents: Mr.R.Neelakantan,G.A.


O R D E R
Heard both sides.

2. The petitioner was employed as a Grade I Police Constable. He filed the present writ petition seeking to challenge the order of the second respondent the Deputy Superintendent of Police, Vellore Sub Division, Namakkal dated 20.07.2009 and for a consequential direction to permit the petitioner to engage a lawyer and to proceed with the enquiry pursuant to the charge memo issued by the first respondent.

3. By the impugned order dated 20.07.2009, the petitioner was informed that though he was permitted to engage a lawyer to assist him in the oral enquiry, but it is subject to the condition that the lawyer should not cross examine the prosecution witness during the oral enquiry. In effect, according to the second respondent, the lawyer should be present as an observer during the oral enquiry. Therefore, the petitioner has come forward with the present writ petition.
4. Notice was issued to the respondents. The learned Government Advocate brought to the notice of this Court the judgment of the Supreme Court in D.G.Railway Protection Force and others v. K.Raghuram Babu reported in (2008) 4 SCC 406. In the said judgment, it was stated that ordinarily in a department enquiry, the charged officer cannot be represented by a lawyer and if there is some rule which permits the charged officer to be represented by someone else, permission can be granted. Such representation cannot be claimed as a matter of right. After stating so in paragraph 11, the Supreme Court observed as follows:
"11.Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice."

5. There is no quarrel with the well known proposition of law that as a matter of right a Government servant cannot have the assistance of a lawyer. But in the present circumstances, it is not a question of the request of the petitioner being denied by the respondents. On the contrary, the petitioner was permitted to have a lawyer present during the department enquiry. But he has been asked not to cross examine the witness. This Court is at a loss to know after having permitted a lawyer as to how any restriction can be made about the role of the lawyer. In fact, the very purpose of utilising the assistance of a lawyer is to effectively defend the charged officer in the enquiry.

6. It is brought to the notice of this Court that the Government has issued an order in G.O.Ms.No.2769 Public Department dated 11.11.1969 that the disciplinary authority is vested with the discretion to permit the charged officer to have the assistance of a legal counsel. Therefore, in the present case, the issue is not whether the petitioner is entitled to have the assistance of a lawyer or not. On the contrary, having permitted the assistance of a lawyer, whether the lawyer should be kept idle in the course of the proceedings. A Division Bench of the Gujarat High Court vide its judgment in Navinchandra Shakerchand Shah v. Ahmedabad Co-operative Department Stores Ltd reported in 1979 1 LLJ 60, in paragraph 18 held as follows:
"18. ... The inquiry has to be in accordance with the principles of natural justice. In such a situation apart from technicality whether permission is asked for or having not been asked for, a time has come to expect the employer or his nominee to inform the employee of his rights. If thereafter the employee does not avail of the opportunity, no grievance could be made. And here the petitioner as required by cl.(4) had a right to cross-examine witnesses. Sitting in law Courts day in and day out we know what the art of cross-examination is and few have mastery over it. Do we expect this petitioner to cross examine witnesses on his own, unaided and unhelped by anyone? We are aware of the fact that another workman of his department would have hardly improved the matter, but two together could have put up some show of cross-examination and Udesing could have been cross-examined. If a party is required to showcause and has a right to cross-examine witnesses, such a right would be illusory if it is required to be exercised by lay persons Vide B.E.Supply Co. v. The Workmen, (supra)..."

7. Therefore, the presence of the legal counsel cannot be an idle spectator. But it must have some nexus with the discretion exercised by the respondent. Once a legal counsel is allowed to appear on behalf of a charged officer, he is entitled to exercise the power as a lawyer and effectively defend his client in the enquiry.

8. Therefore, the impugned order in so far as it refuses the engaged lawyer to cross examine the witness is hereby set aside. The writ petition stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.

23.10.2009
svki
Index : Yes/No
Internet:Yes/No



K.CHANDRU,J.

Svki

To


1.The Deputy Inspector General of Police,
Salem Range, Salem.

2.The Deputy Superintendent of Police,
Velur Sub Division,
Namakkal District.







W.P.No.18823 of 2009 and
M.P.Nos.1 and 2 of 2009










23.10.200