Gujarat High Court
P.H. Shrimali vs State Of Gujarat on 9 March, 2005
Author: Akil Kureshi
Bench: Akil Kureshi
JUDGMENT Akil Kureshi, J.
1. Rule.
Learned AGP Ms. Reeta Chandarana waives service of notice of rule on behalf of the respondents. At the joint request of the learned advocates appearing for the parties, the petition is taken up for final disposal today.
2. In this petition, the petitioners have challenged condition No.2 contained in Government circular dated 10.2.04 by which it is provided that no Government servant after five years from the date of his retirement or voluntary retirement will be eligible to assist any Government servant in a departmental inquiry.
3. Petitioner No.1 at the time of filing of the petition was facing a departmental inquiry initiated against him vide chargesheet dated 11.8.03. Petitioner No.2 who is a retired Government servant was engaged by petitioner No.1 to assist him in the said departmental proceedings. During the pendency of the departmental proceedings, the Government issued a circular dated 10.2.04 providing for certain terms and conditions to regulate the engagement of a defence assistant by delinquent Government servants facing departmental proceedings. Besides other conditions, condition No.2 in the said circular dated 10.2.04, as noted, above provided that a Government servant after five years of his retirement or voluntary retirement, as the case may be, will not be eligible to assist a delinquent Government servant in departmental proceedings. The circular also provided that no assistant would be permitted to have more than seven cases on hand and permission will be granted to engage a particular retired Government servant to assist the delinquent only upon production of a certificate that he does not have more than 7 cases on hand at a time. It was also provided that if at any time, it is found that the behaviour of the defence assistant is not proper or that there is any attempt on his part to delay the departmental proceedings, his appointment would be liable to be cancelled.
On account of the said circular, petitioner No.1 was deprived of an opportunity to be represented by petitioner No.2 as his defence assistant.
4. It is stated by the learned AGP under instructions that during the pendency of the petition, oral inquiry against petitioner No.1 is over and the inquiry report is awaited. In that view of the matter, so far as the question of permitting petitioner No.1 to engage petitioner No.2 as his defence assistant is concerned, the same has lost its relevance and the question has now become one of academic interest. It is therefore not necessary to decide the challenge to condition No.2 contained in circular dated 10.2.04 at the instance of petitioner No.1.
5. Petitioner No.2 who is a retired Government servant has also joined in the present petition in challenging the said condition primarily on the ground that such a condition is impermissible and an illegal fetter on his right to continue any profession or occupation as guaranteed under Article 19(1)(g) of the Constitution of India. It is contended on behalf of petitioner No.2 that he is free to practice any profession or carry on any occupation, trade or business and that the said right cannot be curtailed otherwise than by way of reasonable restrictions. It is contended that condition No.2 contained in circular dated 10.2.04 is unreasonable inasmuch as there is no justification for imposition of such a condition. It is submitted that there is no corresponding restriction on appointment of Inquiry Officers. It is further submitted that petitioner No.2 receives Daily Allowance and Travelling Allowance for attending the departmental enquiries and that therefore by way of such a condition, his right to receive such benefits cannot be taken away by the Government.
6. In response to the notice issued by this Court, the Government has filed affidavit in reply. It is contended, inter alia, that it is found that some retired Government servants are regularly practising the activity of assisting the Government servants facing departmental enquiries as a profession and they try to obstruct and delay the departmental inquiry and are also found to pressurise witnesses some times. In view of this situation, the Government found it necessary to restrict the participation of retired Government servants by introduction of the said condition in the circular dated 10.2.2004.
6.1 It is further contended that the Government servant does not have an unlimited right to be represented through a defence assistant of his choice. Learned AGP relies on the note under rule 9(5)(c) of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 (hereinafter to be referred to as the said Rules). Clause (c) of sub-rule (5) of rule 9 of the said Rules along with the note reads as under:-
"(c) The Disciplinary Authority may nominate any person hereinafter referred to as the Presenting Officer to present the case in support of the charge, before itself if it is to inquire into the charges or before the Inquiry Authority. [The Government servant may present his case with the assistance of any other Government approved by the Inquiry Authority, but may not engage a legal practitioner for the purpose unless the Disciplinary Authority having regard to the circumstances of the case so permits].
"Note : The Government servant may also take the assistance of a retired Government servant to present the case on his behalf subject to such conditions as may be determined in general or special orders issued by the Government from time to time."
Reliance is also placed on a circular dated 3rd April 1987 which provides, inter alia, that the delinquent Government servant will not be entitled to engage a lawyer as his defence assistant unless so permitted by the Disciplinary Authority. The said circular also provides that a retired Government servant as an Assistant will be entitled to receive Daily Allowance (DA for short) and Travelling Allowance (TA for short) at the prescribed rates. The said circular also provides that the retired Government servant for assisting the delinquent Government servant will not be entitled to receive any fee or honorarium from him. It is provided that the Government servant may be permitted to engage a defence assistant subject to the above conditions.
On the basis of the above circulars, it is contended that petitioner No.2 has no vested right to represent any Government servant in departmental proceedings and that the same has to be at the discretion of the Disciplinary Authority and subject to such conditions as the Government may impose.
7. Having considered the rival submissions, the main question which requires consideration is whether petitioner No.2 can be said to be carrying on profession or occupation of representing delinquent Government servants in departmental proceedings. Answer to this question would decide whether petitioner No.2 has a right to challenge the Government circular dated 10.2.04 or any of its conditions.
8. In order to answer the above question, it would be necessary to examine the nature of the provisions in in relation to the right of a retired Government servant to assist a delinquent Government servant in a departmental inquiry. Clause (c) of sub-rule (5) of rule 9 of the Gujarat State Civil Services (Discipline & Appeal) Rules 1971 provides that the Government servant may present his case with the assistance of any other Government servant approved by the Inquiry Authority but may not engage a legal practitioner for the purpose unless the Disciplinary Authority having regard to the circumstances of the case so permits. The note below the said sub-rule (5) of rule 9 of the said Rules, as noted earlier, provides that the Government servant may also take assistance of a retired Government servant to present the case on his behalf subject to such conditions as may be determined in general or special orders issued by the Government from time to time.
9. From the above, it can be seen that a delinquent Government servant who is facing departmental proceedings is permitted to present his case with the assistance of any other Government servant approved by the Inquiry Authority. A Government servant cannot engage a legal practitioner unless permitted by the Disciplinary Authority having regard to the circumstances of the case. The delinquent Government servant may also take assistance of a retired Government servant to present his case however, subject to the conditions as may be determined by general or special orders issued by the Government. Thus, the right to be represented by an assistant is circumscribed by the provisions of sub-rule (5) and in particular sub-clause (c) of sub-rule (5) of rule 9 of the said Rules. The note below sub-rule (5) though permits the delinquent employee to take assistance of a retired Government servant, it authorises the Government to lay down conditions for a delinquent Government servant to be represented by such a retired Government servant.
Circular dated 3rd April 1987, clearly provides that a retired Government servant while representing a delinquent Government servant in a departmental inquiry will be entitled to receive TA and DA at the rates prescribed which payment is only compensatory in nature. The circular also clearly provides that such a defence assistant will not be entitled to receive any fees or honorarium from the delinquent Government servant. Thus the element of remuneration is completely missing in the concept of representation in a departmental inquiry through a current or a retired Government servant.
10. It is by now well settled that the right to be represented through an assistant in departmental inquiry proceedings is not an absolute right and is governed by the Service Regulations and can be exercised only subject to such conditions and restrictions as may be prescribed.
10.1 In the case of Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, reported in (1993) 2 SCC 115, the Hon'ble Supreme Court held that the right to be represented through counsel or agent can be restricted, controlled or regulated by the statutes, rules, regulations and or standing orders. It was further observed that a delinquent has no right to be represented through a counsel or agent unless the law specifically confers such a right and the requirements of rules of natural justice in so far as the delinquent's right of hearing is concerned the same cannot and does not extend to a right to be represented through counsel or agent. In para 10 of the decision, following observations were made by the Hon'ble Supreme Court.
"The doctrine of natural justice embodies two principles, namely:
(i) no one can be a judge in his own cause, and (ii) a judicial or quasi-judicial tribunal ought not and shall not condemn any person unheard. In the present case we are not concerned with the first principle and must, therefore, confine ourselves to the second which recognises the right to be heard. The second principle envisages that the right to be heard in order to be effective must be preceded by notice as to the exact charge which a delinquent is called upon to meet. Does then the right to be heard include the right to be represented through counsel or agent of the choice of the delinquent. If a Domestic Tribunal refuses permission to a delinquent appearing before it to be represented by an agent would that amount to infringement of the rule of natural justice ? There can be no doubt that a delinquent must be given an opportunity of presenting his case in such way suitable to the character of the enquiry which would ensure a fair hearing resulting in fair dispensation of justice. But does that extend to the right to be represented through counsel or agent is the question which we are called upon to answer."
In the case of Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union reported in (1999) 1 SCC 626, the Hon'ble Supreme Court observed that an employee has no right to representation in departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. It was observed that the right to representation is available only to the extent specifically provided for in the Rules. In the said case, the Hon'ble Supreme Court was pleased to uphold the provisions of the Standing Orders which permitted the employee to be represented in a departmental proceedings through another employee, the only embargo was that the representative should be an employee of the parent establishment. It was found that the choice of the delinquent in selecting his representative is affected only to the extent that the representative has to be a co-employee of the same establishment in which the delinquent is employed. It was, therefore, found that the right of representation in disciplinary proceedings through another employee is not altered or affected or taken away and the Standing Orders were found to conform to the standards of reasonableness and fairness.
In the case of Indian Overseas Bank v. Indian Oversear Bank Officers' Assn., (2001) 9 SCC 540, the Hon'ble Supreme Court was pleased to uphold the fixation of ceiling on the number of cases to be undertaken by a defence assistant. It was observed that the law does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and there is no right to representation by somebody else unless the relevant rules or regulations and standing orders specifically recognise such a right and provide for such representation. In para 6, following observations were made by the Hon'ble Supreme Court.
"We have carefully considered the submissions made as above. The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an officer-employee to have, in a domestic disciplinary enquiry, the assistance of someone else to represent him for his defence in contesting the charges of misconduct. This aspect has been the subject-matter of consideration by this Court on several occasions and it has been categorically held that 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 recognise such a right and provide for such representation.(N. Kalindi v. Tata Locomotive & Engg. Co. Ltd, Dunlop Rubber Co. (India) Ltd. v. Workmen, Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi and Bharat Petroleum Corpon. Ltd v. Maharashtra General Kamgar Union). Irrespective of the desirability or otherwise of giving the employee facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself."
11. From the above, it can be seen that the right of a delinquent Government servant to be represented through an assistant in departmental proceedings is not an absolute right and must depend on the rules, regulations and Government circulars. As noted earlier, rule 9 (5)(c) of the said Rules clearly restricts right of a Government servant to be assisted by another person during the course of inquiry. The assistance of a legal practitioner cannot be availed unless permitted by the Disciplinary Authority having regard to the circumstances of the case. However, assistance of a retired Government servant can be permitted subject to such conditions as may be determined by the Government by general or special order. Again as noted earlier, Government has provided for terms and conditions on which the retired Government servant can be permitted to assist a delinquent Government servant during the course of inquiry. One of the important conditions of circular dated 3rd April 1987 is that the retired Government servant would be entitled to receive only TA and DA and would not be entitled to receive any fee or remuneration for the assistance that he renders. In addition thereto, Government also provided in the circular dated 10.2.04 that no Government servant who is retired more than five years before will be entitled to represent a delinquent Government servant.
It can therefore be seen that the right of a retired Government servant to represent a delinquent Government servant during the course of an inquiry is coextensive with the right of delinquent Government servant to engage him as his assistant. If the delinquent Government servant has no right to insist for being represented through a particular retired Government servant, correspondingly, no retired Government servant has a right to insist that he must be, without any limitation or conditions, permitted to assist any delinquent Government servant in conduct of the inquiry. The rules and regulations make it abundantly clear that there is absolutely no element of carrying on profession or occupation in a retirement Government servant assisting a fellow delinquent Government servant in conduct of a departmental inquiry. When there is no element of remuneration or fee being paid for such assistance rendered, I do not see any element of the retired Government servant carrying on a profession as suggested. In that view of the matter, no retired Government servant has an absolute right to assist any delinquent Government servant in conduct of the inquiry.
In the case of T.M.A. Pai Foundation v. State of Karnataka reported in AIR 2003 SC 355, the Hon'ble Supreme Court observed that Article 19(1)(g) of the Constitution employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. It further observed that education is per se regarded as an activity that is charitable in nature and has so far not been regarded as a trade or business where profit is the motive. The Hon'ble Supreme Court noted the term "occupation" as defined in Webster's Third New International Dictionary as "an activity in which one engages" or "a craft, trade, profession or other means of earning a living".
From the above observations of the Hon'ble Supreme Court and in view of the material available on record, it is difficult to comprehend that petitioner No.2 can be said to be pursuing a profession or occupation of assisting delinquent Government servants in their defence before the inquiry authorities.
12. In view of the above discussion, I do not find that petitioner No.2 was carrying on any profession as suggested. The question of curtailment of his right guaranteed by Article 19(1)(g) of the Constitution, therefore, does not arise and the challenge to condition No.2 to circular dated 10.2.04 at his instance is therefore, not maintainable.
13. In view of the above discussion, while rejecting this petition, it is made clear that I have not examined the legality of condition No. 2 in circular dated 10.12.04.
14. In the result, the petition fails and is hereby rejected. Rule is discharged with no order as to costs.