Madras High Court
Gnanasambandam S. vs Tamil Nadu Cements Corporation Ltd. And ... on 13 February, 2001
Equivalent citations: (2001)IIILLJ1236MAD, (2001)2MLJ140
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. In W.P. No. 17494 of 2000 the petitioner has challenged the order of the 2nd respondent enquiry officer denying the assistance of a lawyer to the petitioner recorded in the enquiry proceedings dated October 4, 2000 held in respect of charge memo bearing No. 4027/A1/2000, dated April 20, 2000 issued by the 1st respondent and consequently direct the respondents to give the petitioner assistance of a lawyer in the domestic enquiry.
2. In W.P. No. 1253 of 2001 the petitioner has challenged the proceedings of the 2nd respondent enquiry officer recorded in the enquiry proceedings dated January 19, 2001 held in respect of charge memo dated bearing No. 4027/A1/2000, dated April 20, 2000 issued by the 1st respondent and consequently for a direction to the respondents to proceed with the enquiry only after affording opportunity to the petitioner to cross-examine management witnesses.
3. Since the parties to both the writ petitions are one and the same and the issue involved are similar in nature, both the writ petitions are taken up together for hearing and disposal. The facts as contained in the affidavit filed in W.P. No. 17494 of 2000 are as follows.
4. The petitioner joined the service in Tamil Nadu Industrial Development Corporation Limited during December, 1976 as an Accountant. During April, 1977 the petitioner was deputed to the 1st respondent/Corporation without his consent and his services were also absorbed in the 1st respondent/Corporation with effect from April, 1981 without his consent. On promotion the petitioner is working as Manager (Finance) in the registered office of the 1st respondent/Corporation and the petitioner has put in 24 years of unblemished record of service in the 1st respondent/Corporation.
5. On April 20, 2000 the petitioner fell suddenly ill as he developed pain in the stomach in the late evening. He left the office in the evening after discharging his work. Due to the same the petitioner had to be on leave as per the advice of his doctor and the petitioner had also informed about the illness to the 1st respondent in his letter dated April 24, 2000. The petitioner also requested the 1st respondent to sanction him medical leave for one month from April 24, 2000 enclosing the original medical certificate issued by a doctor. The said letter was acknowledged by the 1st respondent/Corporation on April 25, 2000 and the petitioner did not receive any reply. While that being so, when the petitioner came to know that the 1st respondent was taking steps to reallocate the work of internal audit, he made a representation on April 6, 2000 expressing his difficulties in any reallocation being made. The petitioner did not receive any reply. However, the petitioner was kept under suspension by order dated April 20, 2000 and charge memo for the same was served on the petitioner on April 29, 2000. As per the charge memo, it was alleged that the petitioner refused to receive the office order No. 2/A1/2000 dated April 29, 2000 which was sought to be served on the petitioner. The petitioner submitted his explanation on April 29, 2000 denying the charges. However, the 1st respondent initiated domestic enquiry with regard to the charges and appointed the 2nd respondent as the enquiry officer. The 2nd respondent held the enquiry on August 7, 2000 on which date the petitioner also attended the enquiry and the petitioner was informed that the 1st respondent is being represented by Mr. S. Chandrasekaran, Manager (Personnel and Administration) as Presenting Officer. Since the said S. Chandrasekaran is a bachelor degree-holder in law and is well experienced in conducting the domestic enquiry and had also represented the Corporation as Presenting Officer and enquiry officer, the petitioner in his letter dated July 15, 2000 requested the 1st respondent to allow the petitioner to have the assistance of a lawyer in the domestic enquiry and a copy of the said representation was also marked to the enquiry officer. The petitioner reiterated the said request in his subsequent letter dated July 26, 2000 followed by a phonogram dated July 30, 2000 to the 2nd respondent. Once again, the petitioner requested for the assistance of a lawyer to the enquiry officer in his letter dated August 7, 2000. However, the 2nd respondent in the enquiry proceedings dated October 4, 2000 recorded his rejection to the representation of the petitioner for assistance of a lawyer. Therefore, the petitioner once again made a representation on October 5, 2000 to the 2nd respondent requesting him to reconsider his decision of declining the assistance of a lawyer to him. The petitioner has not received any reply. Hence, the petitioner is compelled to file the Writ Petition No. 17494 of 2000 before this Court.
6. On the same set of facts, the petitioner also filed W.P. No. 1253 of 2000 challenging the proceedings of the 2nd respondent enquiry officer recorded in the enquiry proceedings dated January 19, 2001 held in respect of charge memo dated bearing No. 4027/A1/2000, dated April 20, 2000 issued by the 1st respondent and consequently for a direction to the respondents to proceed with the enquiry only after affording opportunity to the petitioner to cross-examine management witnesses.
7. Mr. M. Balan Haridas, learned counsel appearing for the petitioner would contend that the rejection of the request of the petitioner to have the assistance of a lawyer by the 2nd respondent is opposed to well established service jurisprudence as it is well settled in law that when an officer is pitted against a legally trained person in the enquiry proceedings, he should be also given the same benefit to have the assistance of a lawyer to represent him in the enquiry proceedings. In this case, the 1st respondent is represented by one Mr. S. Chandrasekaran who is a law graduate and who is working as Manager (Personnel and Administration). He is also well experienced in conducting domestic enquiry and he had represented the corporation as Presenting Officer and enquiry officer also. Therefore, the learned counsel would contend that the entire enquiry proceedings are vitiated inasmuch as the petitioner has not been given the assistance of a lawyer as recorded by the 2nd respondent in the enquiry proceedings dated October 4, 2000. In this connection, the learned counsel for the petitioner would rely upon the following judgments:
(1) Indian Airlines Corporation, represented by Regional Director and Anr. v. N. Sundaram, 1992 2 L.L.N. 811; (2) J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. and Ors., (3) Pushpa Iyengar v. Indian Airlines Corporation and Ors., 1988-I-LLJ-385 (Mad) (4) The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors., .
Relying upon the above judgments the learned counsel would contend that when the 1st respondent decided to appoint a legally trained person and more particularly a law graduate to represent the Corporation, the denial of such opportunity to the petitioner cannot be sustained in view of the pronouncement of the Apex Court as well as the Division Bench of this Court. Therefore, the learned counsel for the petitioner submitted that the impugned proceedings of the 2nd respondent dated October 4, 2000 recording his refusal to permit the petitioner to take the assistance of a lawyer should be set aside and consequently the petitioner should be permitted to have the assistance of a lawyer in the enquiry. For the same reasons the learned counsel would contend that the petitioner should be permitted to cross-examine the witnesses in the presence of the lawyer representing him and without such assistance of a lawyer the 2nd respondent shall not proceed with the enquiry.
8. Mr. R. Viduthalai, learned Government Pleader appearing for the respondent submitted that the request of the petitioner for assistance of a lawyer was rejected on the following grounds viz.,
(i) that the petitioner is not an illiterate person;
(ii) only a single charge is levelled against the petitioner which is not complicated in nature;
(iii) there is no procedure or documents evidenced to denote that the enquiry is of complicated nature and
(iv) service rules of the respondent Corporation do not provide for such assistance of a lawyer.
9. In so far as the first ground for rejection, the learned Government Pleader would draw the attention of this Court to the averments made in the counter affidavit wherein the respondent has stated that the petitioner is a graduate in Commerce with B.Com. degree and has passed Intermediate in Chartered Accountancy Course (ACA.). The petitioner has also passed intermediate in Company Secretary Course (ACS). He is also doing P.G. Diploma Course in Human Resources Development. The petitioner is working for the past 24 years in the Accounts Department. The petitioner has worked in various capacities in the officer cadre as Accountant, Secretarial Officer, Assistant Secretary, Senior Accounts Officer, Deputy Manager (Taxation), Deputy Manager (Finance) and presently working as Manager (Finance). The petitioner was dealing with various cases in the field of Sales Tax and Income Tax and he was coordinating with the lawyers, tax consultants and Chartered Accountants in his capacity as an officer of the respondent/Corporation. He is the President of TANCEM Officers Association for the past 15 years and has filed 15 writ petitions both in his individual capacity and in the capacity as the President of the Association. Therefore, the learned Government Pleader submitted that the petitioner cannot be considered as illiterate person so as to have the assistance of a lawyer in the domestic enquiry. In so far as the charges levelled against the petitioner, the learned Government Pleader submitted that the petitioner has been issued with a charge for refusal to receive the office order. The said charge is not complicated in nature and no procedure or documents evidenced to denote that the enquiry is of complicated nature. Hence, the learned Government Pleader submitted that in view of the nature of the charge also, the petitioner is not entitled to the assistance of a lawyer.
10. In so far as the service rules are concerned the learned Government Pleader submitted that there is no provision in the service rules for assistance of a lawyer to the petitioner and in the absence of such provision, the petitioner cannot compel the respondents to provide the assistance of a lawyer. In this context, the learned Government Pleader referred to the judgment of the Supreme Court reported in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors., wherein the Supreme Court has held 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 and the right to representation is available only to the extent specifically provided for in the Rules." Therefore, the learned Government Pleader submitted that the petitioner is not entitled to the assistance of a lawyer in the domestic enquiry. Further, the learned counsel submitted that the judgments relied upon by the petitioner are with reference to the standing orders relating to workmen. The petitioner herein is an officer governed by service rules. Therefore, the judgments relied upon by the learned counsel for the petitioner relating to workmen cannot be made applicable to this case where the petitioner is an officer and is governed by the service rules. Therefore, the learned Government Pleader submitted that the petitioner is not entitled to the legal assistance and therefore the petitioner cannot challenge the order of the 2nd respondent as recorded in the enquiry proceedings dated October 4, 2000 and consequently cannot seek for a direction to have the assistance of a lawyer in the domestic enquiry. The learned Government Pleader further submitted that both the Presenting Officer and the petitioner are working in the same cadre and therefore the petitioner cannot have any prejudice in the domestic enquiry because the Presenting Officer happens to be a law graduate. Hence, the learned Government Pleader prayed for the dismissal of the writ petitions.
11. In view of the rival submissions, it is to be now considered as to whether the petitioner is entitled to the assistance of a lawyer in the domestic enquiry. In the service rules contemplating the procedures to be adopted in the domestic enquiry, there is no provision for permitting an officer to have the assistance of a lawyer. The relevant service rule can be extracted for convenience and are as follows:
"In every case where it is proposed to impose on a member of a service under the Corporation any of the penalties specified in items (f), (g), (h) and (i) in Rules 5, 3, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral enquiry. The enquiry shall be held if such an enquiry is desired by the person charged or is directed by the authority concerned. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted and the persons charged shall be entitled to cross-examine the witnesses called, as he may wish provided that the officer conducting the enquiry may for special and sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof."
12. In view of the above rule, the next question to be considered is whether an officer is still entitled to the assistance of a lawyer in the domestic enquiry. The Supreme Court in the judgment reported in J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd., (supra) had an occasion to consider the case of dismissal of a company Secretary of Haryana Seeds Development Corporation Ltd., a Government Company. That was a case where the disciplinary Authority by virtue of the powers under Rule 7(5) of the Haryana Civil Services (Punishment and Appeal) Rules, 1952 appointed a Government servant/legal practitioner to be known as a "Presenting Officer" to present a case in support of the charge or charges and such a request for lawyer's assistance was denied to the officer on the ground the rule did not permit. While considering the said rule, the Supreme Court has held as follows:
"8. It would appear that in the inquiry, the respondent-Corporation was represented by its Personnel and Administration Manager who is stated to be a man of law. The rule itself recognises that where the charges are so serious as to entail dismissal from services the inquiry authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reasons of the appellant being pitted against a Presenting Officer who is trained in law. Legal Adviser and a lawyer are for this purpose somewhat liberally construed and must include "whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser". In the last analysis a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justices of the case. It is unnecessary, therefore, to go into the larger question "whether as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner."
Accordingly, the Supreme Court allowed the prayer of the Officer to have the assistance of the lawyer to represent his case in domestic enquiry.
13. In the judgment reported in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (supra) the Supreme Court had an occasion to consider the Regulation 12(8) of Bombay Port Trust Employees Regulations, 1976 which reads as follows in 1983-I-LLJ-1 at p. 3:
"12(8): The employee may take the assistance of any other employee or, if the employee is a Class III or a Class IV employee, of an "Office Bearer" as defined in Clause (d) of Section 2 of the Trade Unions Act, 1926 (16 of 1926) of the Union to which he belongs to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the said 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."
While considering the said rule, the Supreme Court had taken note of the fact that "a man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court presided over by an unbiased Judge? The enquiry officer combines the Judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Added to this uneven scales, is the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action." Finally, the Supreme Court held, "in our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated."
14. A Division Bench of this Court in a judgment reported in Indian Airlines Corporation, represented by Regional Director v. N. Sundaram, (supra) had occasion to consider the standing orders of the Indian Airlines Corporation expressly prohibiting outside representation in departmental enquiries. Even when there was a prohibition for outsiders to represent in the departmental enquiry, this Court has held as follows:
"It is true that the principles of natural justice may come into play when the statute or statutory rules are silent as to the procedure; and no statutory provision or statutory rule can be struck down where it makes a provision excluding application of principles of natural justice. But this principle cannot be viewed in the abstract and the endeavour must be to find out as-to how far and in what manner the statutory provision or statutory rule cannot be stated to have excluded the application of the principles of natural justice. Despite the absence of any standing order enabling the corporation to avail of the services of a Presenting Officer and that too a legally qualified and trained one, the corporation did avail of such services. In that context there cannot be denial of a facility on par with the facility availed of by the Corporation, to the employee. This Court also has further held that the anxiety and vigil of the Court must be to keep the balance and not to countenance the bringing in and perpetuation of an imbalance in the conduct of disciplinary proceedings. By any act of the employer, the employee should not be put to disadvantage in the conduct of disciplinary proceedings. That is the cardinal rule that must prevail, and guide and there cannot be prosecution of disciplinary proceedings in derogation thereof"
15. The learned single Judge of this Court in the judgment reported in Pushpa Iyengar v. Indian Airlines Corporation, (supra) had also an occasion to consider the standing order which provided for a representation by a co-employee but not by a lawyer. That was a case where there was no provision in the standing order enabling the employer to appoint Presenting Officer. However, the employer had chosen to appoint Presenting Officer who is a legally trained person and the request to permit the delinquent to be represented by a lawyer in the domestic enquiry was not refused. This Court held that when the Indian Airlines Corporation is engaging a legally trained person conversant with domestic enquiries, it must also extend such a facility to the employee. The learned single Judge went on to add that even when the standing orders do not provide for a Presenting Officer to be appointed by corporation and yet the employer had chosen to appoint the Presenting Officers who are trained in disciplinary proceedings with considerable legal background, the request for singular representation through a lawyer by the delinquent officer cannot be refused.
16. On a reading of the above judgments, the following points shall emerge:
(i) When the Rule provides for the employee to have the assistance of a lawyer, he is entitled to have the assistance of a lawyer as per the Rule;
(ii) When the Rule does not provide for such an assistance of a lawyer, the employee cannot as a matter of right seek for assistance of a lawyer as the grant of permission for assistance of a lawyer to the employee is a matter of discretion of the employer;
(iii) When the Rule is silent as to the assistance of a lawyer/legally trained person for both the employer and the employee and the employer had chosen to appoint a Presenting Officer who is a legally trained person to put forth the case of the employer before the enquiry officer, the same benefit has to be given to the employee to avoid a total imbalance creeping into the conduct of the disciplinary proceedings and to follow the principles of natural justice.
17. Based upon the above principle, coming to the facts of this case, the Presenting Officer, Mr. S. Chandrasekaran is a graduate in law and he has acted as Presenting Officer and enquiry officer in a number of cases. The Rules applicable to the domestic enquiry do not provide any assistance of a lawyer either to the employer or to the employee. However, the employer has chosen to appoint a Presenting Officer who is a legally trained person. The contentions of the learned counsel for the respondents for refusing permission to the petitioner to have the assistance of a lawyer are that the petitioner himself is a Commerce graduate and he has passed A.C. A. and A.C.S. and has served in very many posts in the same Corporation and the Presenting Officer and the petitioner are on the same cadre. Therefore, the petitioner cannot be called as an illiterate to defend his case. When the question of violation of principles of natural justice is pleaded by the petitioner, this Court has to consider as to whether a benefit availed by the employer by appointing a Presenting Officer could be refused to the petitioner on the ground that the petitioner is not an illiterate person. In my view, such a contention cannot be accepted in view of the fact that once the employer had chosen to appoint the Presenting Officer who is a law graduate, it cannot lie in the mouth of the respondents to say that the petitioner is not an illiterate and can defend his case by himself. When the petitioner is pitted against a legally trained person, only consideration is as to whether he is entitled to an assistance of a lawyer or not and not whether the petitioner himself is a trained person to conduct the enquiry. When the petitioner pleaded his inability to defend his case before the enquiry when the employer is represented by the Presenting Officer who is a law graduate, the principles of natural justice requires the request of the petitioner for assistance of a lawyer ought to have been accepted by the respondents. Therefore, I do not accept the contention of the learned Government Pleader that since the petitioner is not an illiterate, he is not entitled to the Assistance of a lawyer in the domestic enquiry and I reject the same.
18. The next submission of the learned Government Pleader is that the charges levelled against the petitioner are very minor in nature namely that the petitioner has refused the office order and therefore for such a minor charge, the petitioner cannot have the assistance of a lawyer and more particularly there are no procedures or documents evidenced to denote the enquiry is of complicated nature. The said argument shall also fall to the ground since in the very show cause notice dated April 20, 2000 the respondent has referred that "refusal to receive the office order is a serious misconduct especially by an officer in a senior position in the organisation." Therefore, the employer itself has considered the charges as serious misconduct; it cannot merely refuse the assistance of a lawyer to the petitioner on the ground that charges levelled against the petitioner are not complicated in nature. The Court has to consider only that the apprehension of the petitioner to defend his case effectively and not the nature of the charges. When prejudice in the conduct of enquiry without assistance of a lawyer is pleaded by the employee on the ground he is pitted against legally trained persons, it must be presumed that principles of natural justice is violated and the nature of the charges loses its significance. Therefore, I do not find any merit in the contention of the learned Government Pleader that the judgments relied upon by the petitioner arose under the relevant standing orders with regard to workmen and in the present case, the petitioner is an officer and governed by service rules and therefore the principles laid in the above judgments may not be applicable to the present case. The said submission cannot be accepted for the simple reason that the law laid down by the Supreme Court is based upon the principles to provide an opportunity to the delinquent when such an employee is pitted against a legally trained person. Such a cardinal principle of law cannot be made applicable only for workmen and could be refused to an officer like the petitioner. Therefore, the said contention of the learned Government Pleader is also rejected. In the judgment relied upon by the learned counsel for the respondents reported in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union (supra) it is true that the Supreme Court has held that there is no right to representation in the departmental proceedings by another person or a lawyer unless the service rules specifically provide for the same. However, in the present case, even in the absence of such rule enabling the employer also to engage a legally trained person to put forth the case of the employer, the employer has chosen to engage a Presenting Officer who is a legally trained person and a law graduate and the officer who has been pitted against such a legally trained person has not been given the benefit of assistance of a lawyer. Therefore, the judgments relied upon by the learned Government Pleader is not applicable to the facts of the present case. This point has been answered in favour of employee by the Supreme Court in the judgments reported in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (supra) as well as the Division Bench of this Court in Pushpa Iyengar v. Indian Airlines Corporation, (supra).
19. Another judgment relied upon by the learned Government Pleader reported in Cipla Ltd. v. Ripu Daman Bhanot relates to a case as per the service rules where the employee is entitled to be represented by a co-employee only and no right is conferred on the employee to be represented by a lawyer in the departmental enquiry. That was a case where the employer has not engaged any legally trained person to prosecute the case of the employer. In the absence of the same, the employee cannot have the assistance of a lawyer more particularly in the absence of a provision to have the assistance of a lawyer in the rules. Therefore, the said judgment also is not applicable to the facts of the present case. In that view of the matter, I do not find any justification in rejecting the request of the petitioner to have the assistance of a lawyer in the domestic enquiry conducted against the petitioner on the basis of the charge memo dated April 20, 2000. Accordingly, I set aside the findings recorded by the enquiry officer dated October 4, 2000 refusing the assistance of a lawyer to the petitioner to defend his case in the domestic enquiry. The respondents are directed to permit the petitioner to have the assistance of a lawyer to defend his case. With the above direction, the Writ Petition No. 17494 of 2000 is allowed.
20. Coming to the relief sought for by the petitioner in W.P. No. 1253 of 2001, the question remains as to the further course of action to be adopted in the enquiry proceedings. Admittedly, three witnesses have been examined and the request of the petitioner to have the assistance of a lawyer in the enquiry proceedings was negativated by the respondents. By the impugned order dated January 19, 2000, the enquiry officer forfeited the right of the petitioner to cross examine the witnesses since he did not avail the opportunity given to him and directed the enquiry to be posted for examination of witnesses on behalf of the petitioner. In view of my finding in W.P. No. 17494 of 2000, the enquiry proceedings so far taken place shall remain part of the record. The examination in chief of these witnesses is not vitiated by reason alone of the circumstance that the petitioner did not then have the assistance of a lawyer to cross-examine them. The situation could be remedied now by tendering the witnesses for cross examination by a lawyer to be engaged by the petitioner. Accordingly, the order of the enquiry officer forfeiting the right of the petitioner to cross-examine the witnesses is set aside and the petitioner is permitted to cross-examine the witness with the assistance of a lawyer and also shall be given opportunity to examine his witnesses with the assistance of a lawyer. With the above direction, the Writ Petition No. 1253 of 2001 is also allowed. No costs. Consequently, W.M.P. Nos. 25313 of 2000, 1719 and 1720 of 2001 are closed.