The
Management of National Seeds Corporation Ltd. Vs. K.V. Rama Reddy [2006] Insc
626 (29 September 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(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, 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).
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 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
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
-
amount alleged
to have been misappropriated is Rs.63.67 lakhs
-
number of
documents and number of witnesses are relied on by the respondent, and
-
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.
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