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CASE NO.: Appeal (civil)  4335 of 2006

PETITIONER: The Management of National Seeds Corporation Ltd.

RESPONDENT: K.V. Rama Reddy                                          

DATE OF JUDGMENT: 29/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (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,

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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).

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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

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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

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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 (a) amount  alleged to have been misappropriated is Rs.63.67 lakhs (b)   number of documents and number of witnesses are relied on  by the respondent, and (c) 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.