Madras High Court
Ms. Grace C. Naulak vs The Management Of Air India Limited on 25 September, 2014
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.01.2015
DELIVERED ON : 22 .01.2015
CORAM:
The Honourable Mr.Justice K.K.SASIDHARAN
W.P.No.26989 of 2014
& M.P.No.1 of 2014
Ms. Grace C. Naulak ...Petitioner
- Vs.-
1. The Management of Air India Limited
Rep. by its Managing Director
Airlines House
113, Gurudwara Rakabganj Road
New Delhi - 110 001.
2. Deputy General Manager (OPS) - IFS
Air India Limited
S/Region
Chennai. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the second respondent in connection with the impugned communication dated 25 September 2014 bearing Ref.No.MAA/IFS/CC/DISC/518719/273 and quash the same and consequently direct the respondents to permit the petitioner to have assistance of Legal Practitioner in the proposed departmental Enquiry pursuant to the charge memo bearing Ref. No.MAA/IFS/CC/DISC./518719/299 dated 11.7.2014.
For Petitioner : Mr.V. Prakash
Senior Counsel
for Mr. K. Sudalai Kannu
For Respondents : Mr.N.G.R.Prasad for RR1 and 2
-----------------
ORDER
This writ petition is directed against the proceedings dated 25 September 2014 whereby and whereunder the second respondent rejected the request made by the petitioner to permit her to avail the services of a lawyer to represent her in the on going disciplinary proceedings.
Brief facts:
2. The petitioner was appointed as flight attendant on 23 August 2003. The management of Air India Limited on completion of five years of service promoted her as Senior Cabin Crew. While so, the second respondent issued a charge memo on 13 September 2011 alleging that she tested positive in the Alcoholic Breath Analyser Test. The petitioner was asked to submit her explanation. The petitioner admitted the charges. The disciplinary authority passed an order of punishment by reduction in time scale by three increment stages on cumulative basis. The petitioner was once again subjected to Breath Analyser Test on 2 June 2014. Since the test confirmed the presence of Alcohol, she was placed under suspension. The management issued a charge memo on 11 July 2014 alleging that during pre-flight medical check carried out by the Medical Officer at about 12.58 hours on 2 June 2014, she was tested positive in the Alcoholic Breath Analyser Test. In her explanation, the petitioner denied the charges. Thereafter, the management appointed an enquiry officer. The petitioner submitted a representation, wherein she made a request to permit her to engage the services of a lawyer. The request was rejected by the management by placing reliance on the Service Regulations. The said order is under challenge in this writ petition.
3. The second respondent in his counter affidavit justified the impugned order. According to the second respondent Paragraph 32 of the Standing Orders concerning Discipline and Appeals provides that only an employee of the Organisation would be permitted to represent the delinquent. It was contended that in view of the Regulation, the petitioner cannot be heard to say that she should be permitted to engage a lawyer to represent her in the enquiry proceedings.
Submissions:
4 (a) The learned Senior Counsel for the petitioner contended that the representation submitted by the petitioner was rejected only on the basis of Service Regulations. While rejecting the request, the second respondent violated the constitutional rights of the petitioner. According to the learned Senior Counsel the petitioner is not a legally trained personnel and as such it would not be possible for her to defend the proceedings effectively. The learned Senior Counsel further contended that the matter requires cross examination of experts and being an ordinary employee of the Corporation, it would not be possible for the petitioner to undertake the said task.
(b) Learned Senior Counsel placed reliance on the following decisions:
(i) T. Muniswamy v. State of Mysore (AIR 1964 Mys 250)
(ii) C.L.Subramaniam v. Collector of Customs, Cochin (1972) 1 LLJ 465.
(iii) India Photographic Company Ltd. & Ors. v. Saumitra Mohon Kumar alias Saumitra Kumar (1984) 48 FLR 246 (Cal) 5(a). The learned Standing Counsel for the respondents submitted that the petitioner is bound by the Service Regulation. The Regulation permits only a "friend'' to represent the delinquent. The petitioner was given liberty to engage the services of a "friend" to represent her in the enqiry proceedings. The impugned order was issued in line with the Service Regulations.
(b) The learned counsel placed reliance on the judgment of the Supreme Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993) 2 SCC 115 in support of his contention that the delinquent has no right to represent through counsel.
Analysis:
6. The petitioner is an employee of Air India Limited. The service conditions are governed by the Standing Orders. Paragraph 32 of the Standing Orders concerning Discipline and Appeals reads thus:
"32. An employee may be permitted, if he so desires, to have under his own arrangements, the assistance of a "friend" during the course of the enquiry. Such a "friend" must be a serving employee of the Corporation. No outside representation shall be permitted in any circumstances."
7. The petitioner is facing disciplinary proceedings initiated by the second respondent. The petitioner has already submitted her explanation to the charge memo. The enquiry officer is now seized of the matter. It is not the case of the petitioner that the enquiry officer is a legal professional. Similarly, it is not her case that the Presenting Officer is a legally trained personnel. In view of this factual position, the petitioner cannot be heard to say that she was not given a fair treatment in the matter of taking assistance of a legal professional.
8. The moot question is whether in the light of statutory provisions it would be open to the petitioner to make a claim for engaging a counsel to represent her before the enquiry officer.
9. The Service Regulations are equally applicable to the management and the employees. The Service Regulations concerning Discipline and Appeals permits the employee to take the assistance of a "friend". Such a friend should be a serving employee of the Corporation. There are legally trained personnel working in the very same Corporation to represent her before the enquiry officer. The petitioner has come up with a case that she has no friends in Air India. The fact that she is not having a friend to represent her before the Corporation alone would not give her a right to insist that she should be given permission to engage a lawyer, not withstanding the statutory position.
10. The petitioner has not challenged the legality and correctness of paragraph 32 of the Standing Order concerning Discipline and Appeals.
11. The petitioner has taken up a contention that it would not be possible for her to cross examine the Medical Officer. It is always open to the petitioner to examine an expert on her side to prove that the Breath Analyser Test conducted by the Medical Officer was defective.
12. The Supreme Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115, observed that the delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The Supreme Court said:
"17. It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquents right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquents right of representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice."
13. The Supreme Court in Dinesh Chandra Pandey v. High Court of M.P., (2010) 11 SCC 500, considered Rule 14(8) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, which contain a pari materia provision. The Supreme Court interpreted Rule 14(8) and held that it is not absolutely mandatory to permit the engagement of a legal practitioner by the Disciplinary Authority. The observation reads thus:-
14. The bare reading of this Rule shows that the government servant may take the assistance of any other government servant to represent his case but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits. The expression may cannot be read as shall. The normal rule is that a delinquent officer would be entitled to engage another officer to present his case. But if the presenting officer is a legal practitioner, he may normally be permitted to engage a legal practitioner. The third category is where the disciplinary authority having regard to the circumstances of the case so permits. It is, therefore, not absolutely mandatory that the disciplinary authority should permit the engagement of a legal practitioner irrespective of the facts and circumstances of the case.
14. Since the statute is very clear that no outside representation would be permitted in any circumstances and only a serving employee of the Corporation would be permitted to represent the employee, the second respondent was correct in rejecting the request made by the petitioner. I therefore do not find any justifiable reason to take a different view in the matter.
15. In the upshot, I dismiss the writ petition. Consequently, the connected MP is closed. No costs.
22.01.2015 Index: Yes/no Internet: Yes/no Tr/ To
1. The Management of Air India Limited Rep. by its Managing Director Airlines House 113, Gurudwara Rakabganj Road New Delhi - 110 001.
2. Deputy General Manager (OPS) - IFS Air India Limited S/Region Chennai.
K.K.SASIDHARAN, J Tr Pre-delivery order in W.P.No.26989 of 2014 22.01.2015