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PETITIONER: BOARD OF TRUSTEES OF THE PORT OF BOMBAY

       Vs.

RESPONDENT: DILIPKUMAR RAGHAVENDRANATH NADKARNI BAND OTHERS

DATE OF JUDGMENT17/11/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1983 AIR  109            1983 SCR  (1) 828  1983 SCC  (1) 124        1982 SCALE  (2)1097  CITATOR INFO :  R          1983 SC 454  (5)  E&D        1985 SC1618  (9)  R          1987 SC2257  (15)  R          1991 SC 107  (239)  RF         1991 SC1221  (4)

ACT:      Departmental  Proceedings-Domestic   enquiry-Management appointed Iegally  trained officers as prosecuting officers- Employee s request to be represented by a legal practitioner rejected-whether violates principles of natural justice.      Natural justice-Employee  denied  assistance  of  Iegal practitioner  before   domestic  enquiry   while  management engaged legally  trained men as prosecuting officers-Whether violates principles of natural justice.

HEADNOTE:      The time honoured and traditional approach in regard to a domestic  enquiry in  industrial disputes  is that it is a managerial  function   which  would  be  best  left  to  the management without  the intervention of persons belonging to the legal  profession. This approach was based on the ground that a  domestic enquiry  should not  be unduly inhibited by strict rules of evidence and procedural laws and that in the informal atmosphere  in which  the enquiry  is conducted the delinquent  would   be  able  to  defend  himself.  Whatever justification there  might have been in the past for holding this view,  the  position  today  is  altogether  different. Industrial  establishments   employ  on   their   rolls   an impressive array  of labour  officers and  legal advisors in the garb  of employees.  These  officers  are  appointed  as presenting  and  prosecuting  officers  for  conducting  the management’s  case   in  a  domestic  enquiry.  The  enquiry officer, more  often than not, is a man of the establishment doning the  robes of  a judge.  The enquiry  is held  in the establishment’s office  or part  of it. It does not bear any comparison to  an adjudication by an impartial arbitrator or a Court  presided over  by an  unbiased judge. Witnesses are generally employees  of  the  management  which  orders  the enquiry. In  short the  scales are weighted in favour of the management and against the workman. ;832 G-H, 834 E-F]      Secondly, even  in a domestic enquiry there can be very

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serious charges:  an adverse  verdict may  so  stigmatize  a workman that his future, both in regard to his reputation as well as his livelhood, might be put in jeopardy. [834 D]      The aphorism  that "justice  must not  only be done but must be  seen to  be done"  is not a euphemism applicable to courts alone; it should apply with equal vigour to all those responsible  for   fairplay  in   action.  A  quasi-judicial tribunal cannot  view the  situation with  equanimity  where there is inequality of representation. [835 G] 829      Brooke Bond  lndia (Pvt)  Ltd. v.  Subba Raman  (S) and Anr. [1961] 2 Labour Law Journal 417 referred to.      Dunlop Rubber Co. v. Workman [1965] 2 SCR 139, referred      to.      Pet. v.  Greyhound Racing Association Ltd. [1968] 2 All E. R. 545, referred to.      M. H.  Hoscot v.  State of Maharastra [1978] 3 SCC 544, referred to Facts:      In a chargesheet issued against the delinquent employee (respondent) for  the misconduct  alleged  against  him  the management appointed  its legal officer and his assistant as presenting officers.  At  the  same  time  it  rejected  the employee’s request  to engage  a legal  practitioner for his defence. Meanwhile,  as  the  enquiry  was  in  progress,  a regulation came into force enabling a delinquent employee to engage  a  legal  practitioner  if  the  presenting  officer appointed  by   the  disciplinary   authority  is   a  legal practitioner. Even  after the  regulation  came  into  force neither the  enquiry officer  nor the disciplinary authority reviewed the  earlier decision  rejecting  the  delinquent’s request to  be represented  by a  legal practitioner. At the end  of  the  enquiry  the  respondent  was  dismissed  from service.      The High  Court set  aside the  order of  dismissal  on grounds of violation of principles of natural justice.      On the  question whether,  where in  a domestic enquiry tho  employer   appoints  a   legally  trained   person   as presenting-cum-prosecuting  officer  the  enquiry  would  be vitiated for  violation of  principles of natural justice if the  employer   rejected  the   delinquent’s   request   for permission to defend him by a legal practitioner.      Dismissing the appeal, ^      HELD:  Since  the  delinquent  employee  had  not  been afforded a  reasonable opportunity  to  defend  himself  the enquiry ii  vitiated for  violation of principles of natural justice. [836 E]      (1) Where  in an enquiry before a domestic tribunal tho delinquent is pitted against a legally trained person and if he  had   sought  permission   to  appear  through  a  legal practitioner, refusal  to grant such request would amount to denial of reasonable opportunity to defend himself. [837 D]      C. L. Subramaniam v. Collector of Customs Cochin [1972] 3 SCR 485, applied.      (2) Where  rules governing  a domestic  enquiry do  not place an  embargo on  the right  of  the  delinquent  to  be represented by  a legal  practitioner the matter would be in the discretion  of the  enquiry officer whether, considering the  nature   of  the  adjudication  and  the  enquiry,  the delinquent should be afforded a reasonable opportunity to be represented by a legal practitioner. [839 G] 830      (3) When an enquiry officer finds that the employer had appointed a legally trained person as presenting officer, he must, before  the commencement  of the enquiry, enquire from

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the delinquent  whether he would like to take the assistance of a legal practitioner. [838 E]      A. K.  Roy v.  Union of  India, [1982]  2 SCR 272 at p. 345, referred to.      In the  instant case  when the  enquiry commenced rules were  silent  on  the  question  of  representation  of  the delinquent by  a legal  practitioner.  While  rejecting  tho delinquent’s  request   to  be   represented  by   a   legal practitioner  the   disciplinary  authority   appointed  the appellant’s legal  officer and his assistant who were in its employment    as     presenting-cum-prosecuting    officers, apparently on  the view  that the issues that would arise in the enquiry  were such  complex issues   involving intricate legal propositions  of law  which  need  the  assistance  of legally trained  person. While  tho employer was represented by two legally trained persons at tho cost of the appellant, the delinquent  was asked either to fend for himself or have the assistance  of another  employer who  was not  a legally trained person.  In tho  circumstances, the  delinquent  was denied resonable opportunity to defend himself and therefore the conclusion  arrived at by the disciplinary authority was in violation of one of the principles of natural justice.      Though tho  disciplinary authority, even in the absence of a specific provision, could have exercised his discretion to  permit  the  employee  to  be  represented  by  a  legal practitioner, it  was exercised  against the employee on the ground that  the disciplinary  authority was  not under  any statutory obligation  to grant such request. The regulation, which came into force during the course of the enquiry, made it  obligatory  for  the  disciplinary  authority  to  grant permission to tho delinquent to appear and defend himself by a legal  practitioner if  the management  was represented by legally trained  persons. After  the  regulation  came  into force  the  disciplinary  authority  should  have  suo  motu reviewed his  earlier order  and afforded  an opportunity to the delinquent  to be  represented by  a legal practitioner. [838 D]      The  expression   "life"  used   in  Art   21  of   the Constitution has  a wide  moaning. It  does not connote only existence or continued drudgery through life. [839 C]

JUDGMENT:      CIVIL APPELLATE  JURISDlCTlON: Civil Appeal No. 3734 of 1982      Appeal by  Special Leave  from the  Judgment and  order dated the  4th November,  1982 of  the Bombay  High Court in Misc. Petition No 705 of 1979.      F. S.  Nariman, A.  S. Bhasania,  O.C. Mathur  and D.N. Mishra for the Appellant.      Y.S. Chitale,  Mrs. S.  Bhandare and  T. Sridharan, for the Respondent. 831      The Judgment of the Court was delivered by      DESAI, J. No Special leave granted.      We heard  Mr. F.  S. Nariman  for the appellant and Dr. Y.S. Chitale for  the first  respondent. With the consent of parties we proceed to dispose of the appeal.      A  charge-sheet   was  drawn-up   against   the   first respondent for the alleged misconduct and an Enquiry Officer was  appointed   to  hold  the  enquiry  against  the  first respondent. Before  the enquiry opened, the first respondent submitted a  request seeking  permission to  engage a  legal practitioner for  his defence. The Chairman of the appellant

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rejected  this  request  and  simultaneously  appointed  two officers, namely,  Shri R.K. Shetty and Shri A.B. Chaudhary, Legal   Adviser   and   Junior   Assistant   Legal   Adviser respectively of  the appellant as Presenting Officers before the Enquiry  Officer. A  copy of this letter was endorsed to the first  respondent with  a foot note that his request for permitting him to appear through a legal practitioner in the enquiry has  been rejected  by the  Chairman. As a sequel to the rejection  of his  request, the  first respondent out of compelling necessity  submitted a  request  that  Shri  V.V. Nadkarni be permitted to appear in his defence which appears to have  been granted. The enquiry opened on April 13, 1976. On May  8, 1976 Bombay Port Trust Employees Regulations 1976 came into force. Regulation 12(8) reads as under:           "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)  p 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."      It  may  be  mentioned  that  the  date  on  which  the aforementioned regulation came into force, the second out of 25 witnesses for the employer was in the witness box. It may as well  be mentioned  that even after the Regulation 12 (8) came  into  force,  neither  the  Enquiry  Officer  nor  the Chairman of the appellant thought fit to 832 review the  earlier decision  so  as  to  enable  the  first respondent to  appear through  a legal  practitioner. At the end of  the enquiry, the first respondent was dismissed from service.      The  first   respondent  challenged  the  legality  and validity of the order of dismissal in Misc. Petition No. 705 of 1979 in the High Court of Judicature at Bombay. A learned Single Judge  of the  High Court  by his  judgment and order dated September  13, 1982 quashed and set aside the order of dismissal, inter  alia, holding  that while  appointing  two Presenting Officers  both legally  trained, the  Chairman of the appellant  failed to  afford a reasonable opportunity to the first  respondent to  defend  himself  by  refusing  him permission to  appear through  a legal  practitioner and the principles of  natural justice are violated. An appeal being O.O.C.J 594 of 1982 by the appellant was dismissed in limine by a Division Bench of that High Court. Hence this appeal by Special leave.      We were  not inclined  to grant leave to appeal in this case, but  as we  want to  clear a  legal  misconception  we thought fit  to hear  learned counsel  on either side and to dispose of this appeal by a short judgment.      The narrow question which we propose to examine in this appeal is  whether where  in a  disciplinary  enquiry  by  a domestic  tribunal,   the  employer  complaining  misconduct appoints   legally   trained   person   as   Presenting-cum- Prosecuting Officer  the denial  or refusal  of a request by the delinquent employee seeking permission to engage a legal practitioner to  defend him at the enquiry, would constitute such denial of reasonable opportunity to defend one self and thus violate  one of  the essential  principles  of  natural justice which would vitiate the enquiry ?      The time  honoured and  traditional approach  is that a

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domestic enquiry  is a  managerial function  and that  it is best left  to management without the intervention of persons belonging to legal profession. This approach was grounded on the view that a domestic tribunal holding an enquiry without being unduly  influenced by strict rules of evidence and the procedural jagger-naugkt should hear the delinquent employee in person  and in  such an  informal enquiry, the delinquent officer would  be able  to  defend  himself.  The  essential assumption underlying  this belief  is questionable  but  it held the field for some time and there are decisions of this Court in Brooke Bond 833 India (Pvt.)  Ltd. v. Subba Raman (S) and Anr.(1) and Dunlop Rubber Co.  v. Workmen(2), in which it has been held that in a disciplinary  enquiry before  a domestic tribunal a person accused of  misconduct has  to  conduct  his  own  case  and therefore as  a corollary  it cannot be said that in such an enquiry against  a workman  natural justice  demands that he ought to  be represented  by a  representative of  his Union much less  a member  of the legal profession. While buttres- sing this  approach, an  observation was  made  that  unless rules prescribed  for holding  the enquiry  do not  make  an enabling provision  that the workman charged with misconduct is entitled  to be  represented by a legal practitioner, the Enquiry Officer  and/or  the  employer  would  be  perfectly justified in  rejecting such  a request  as it would vitiate the informal atmosphere of a domestic tribunal. A strikingly different view  was  sounded  by  Lord  Denning  in  Pet  v. Greyhound Racing  Association Ltd.(3), wherein the concerned authority directed an enquiry to be held into the withdrawal of a  trainer’s dog from a race at a stadium licensed by the National Greyhound  Racing Club.  The rules  of the Club did not prescribe  the procedure  to  be  followed  in  such  an enquiry, and  there was negative provision excluding a legal practitioner from such an enquiry. The procedure for enquiry was the  routine one of examination and cross-examination of the witnesses.  The licensee  charged with misconduct sought permission to be represented by counsel and Solicitor at the enquiry, which  request was  turned down  by track stewards. When the  matter reached  the Court  of Appeal, Lord Denning observed as under:           "I should  have thought,  therefore, that  when  a      man’s reputation or livelihood is at stake, he not only      has a  right to  speak by  his own mouth. He has also a      right to speak by counsel or solicitor." The trend  therefore is  in the  direction of  permitting  a person who  is likely  to suffer  serious civil or pecuniary consequences as  a result  of an  enquiry, to  enable him to defend  himself  adequately,  he  may  be  permitted  to  be represented by  a legal practitioner. But we want to be very clear that  we do  not want  to go  that far  in  this  case because it  is not  necessary for  us  to  do  so.  The  all important question:  where as a sequal to an adverse verdict in a domestic enquiry serious 834 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 is  kept open.      We  concern  ourselves  in  this  case  with  a  narrow question whether  where in  such a disciplinary enquiry by a domestic tribunal,  the  employer  appoints  Presenting-cum- Prosecuting Officer to represent the employer by persons who

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are legally  trained, the  delinquent employee,  if he seeks permission  to   appear  and   defend  himself  by  a  legal practitioner, a  denial of  such a request would vitiate the enquiry on  the ground  that the delinquent employee had not been afforded  a reasonable  opportunity to  defend himself, thereby vitiating one of the essential principles of natural justice.      Even in  a domestic  enquiry there  can be very serious charges and  adverse  verdict  may  completely  destroy  the future of the delinquent employee The adverse verdict may so stigmatize him  that his  future  would  be  bleak  and  his reputation and livelihood would be at stake. Such an enquiry is generally  treated  as  a  managerial  function  and  the Enquiry Officer  is more  often a  man of the establishment. Ordinarily  he   combines  the  role  of  a  Presenting-cum- Prosecuting Officer  and an  Enquiry Officer  a Judge  and a prosecutor rolled  into one.  In the  past it  could be said that there was an informal atmosphere before such a domestic tribunal and  that strict  rules of evidence and pitfalls of procedural law  did not  hamstring the  enquiry  by  such  a domestic tribunal.  We have  moved far away from this stage. The situation  is where  the employer  has on  his  payrolls labour officers,  legal advisers  lawyers  in  the  garb  of employees and  they are appointed Presenting-cum-Prosecuting Officers and  the delinquent  employee pitted  against  such legally trained  personnel has to defend himself. Now if the rules prescribed  for such  an  enquiry  did  not  place  an embargo on  the right  to  the  delinquent  employee  to  be represented by  a legal practitioner, the matter would be in the discretion of the Enquiry Officer whether looking to the nature of  charges, the  type of  evidence  and  complex  or simple issues  that may  arise in the course of enquiry, the delinquent  employee   in  order   to  afford  a  reasonable opportunity to defend himself should be permit ted to appear through a  legal practitioner.  Why do  we say  so?  Let  us recall the  nature of enquiry, who held it, where it is held and what  is the atmosphere ? Domestic enquiry is claimed to be a  managerial function.  A man  of the establishment dons the robe of 835 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.  Add  to  this uneven scales, 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. And a quasi-judicial tribunal cannot view the matter with equanimity  on inequality of representation. This Court in M.  H. Hoscot  v. State  of Maharashtra(1)  clearly ruled that in  criminal trial where prosecution is in the hands of public prosecutor,  accused,  for  adequate  representation, must have  legal aid  at State cost. This will apply mutatis mutandis to the present situation.      We are  faced with the situation where when the enquiry commenced the  rules neither  provided  for  permitting  the delinquent employee  to be represented by an advocate nor an

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embargo was placed on such appearance. The rules were silent on this  point. But  the Chairman  of  the  appellant  while rejecting  the  request  of  the  first  respondent  seeking permission  to   appear   through   a   legal   practitioner simultaneously  appointed   M/s.  R.K.   Shetty  and  A.  B. Chaudhary, Legal  Adviser and Junior Assistant Legal Adviser respectively,  in   the  employment   of  the  appellant  as Presenting cum-Prosecuting Officers. What does this signify? The normal  inference is  that according  to the Chairman of the appellant  the issues  that would  arise in  the enquiry were  such   complex  issues   involving   intricate   legal propositions  that   the  Enquiry  Officer  would  need  the assistance of  Presenting-cum Prosecuting Officers. And look at the  array of law officers of the appellant appointed for this purpose.  Now examine  the approach  of  the  Chairman. While he  directed two  of his  law officers  to conduct the enquiry as  prosecutors, he  simultaneously proceeds to deny such legal representation to the delinquent employee when he declined the  permission to  the first  respondent to appear through a  legal practitioner.  Does this  disclose  a  fair attitude or fair play in 836 action ?  Can one  imagine how  the scales were weighted and thereby tilted in favour of the prosecuting officer. In this enquiry the  employer would  be represented  by two  legally trained minds  at the cost of the Post Trust while the first respondent was asked either to fend for himself in person or have the assistance of another employee such as Nadkarni who is not  shown  to  be  a  legally  trained  person  but  the delinquent employee  cannot engage legal practitioner at his cost. Can this ensure a fair enquiry ? The answer is not far to seek.  Apart from any legal proposition or formulation we would consider  this approach  as utterly unfair and unjust. More so  in absence  of rules, the Chairman of the appellant was not  precluded from granting a request because the rules did not  enact an  inhibition. Therefore  apart from general propositions, in  the facts of this case, this enquiry would be a  one sided  enquiry  weighted  against  the  delinquent officer and would result in denial of reasonable opportunity to defend  himself. He  was pitted  against the  two legally trained minds and one has to just view the situation where a person not  admitted to  the benefits  of niceties of law is pitted against  two legally  trained minds and then asked to fend for himself. In such a situation, it does not require a long argument  to convince  that the delinquent employee was denied a  reasonable opportunity  to defend  himself and the conclusion arrived  at would  be in  violation of one of the essential principles  of natural  justice,  namely,  that  a person against  whom enquiry  is held  must  be  afforded  a reasonable opportunity to defend himself.      Are we  charting a new course ? The answer is obviously in  the  negative.  In  C.L.  Subarmaniam  v.  Collector  of Customs,  Cochin(1)  a  Government  employee  requested  the Enquiry Officer  to permit  him to  appear through  a  legal practitioner and even though a trained public prosecutor was appointed as  Presenting Officer,  this request  was  turned down. When  the matter  reached this Court, it was held that the enquiry  was in  breach of  the  principles  of  natural justice. The order of the domestic tribunal was sought to be sustained on  the submission  that sub-rule  5 of rule 15 of the Central  Civil  Services  (Classification,  Control  and Appeal) Rules,  1957 that "...... The Government Servant may present his  case with  the  assistance  of  any  Government servant approved  by the  Disciplinary Authority but may not engage a  legal practitioner  for  the  purpose  unless  the

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person nominated  by the Disciplinary Authority as aforesaid is  a   legal  practitioner   or  unless   the  Disciplinary Authority, 837 having regard to the circumstances of the case, so permits." The submission was that it is a matter within the discretion of the  Enquiry Officer whether to grant permission and more so because  the relevant  rule fetters  the claim  to appear through a  legal practitioner.  Negativing this  contention, this Court  held that  the fact  that the  case against  the appellant was  being handled  by a trained prosecutor was by itself a  good ground for allowing the appellant to engage a legal practitioner  to defend  him lest the scales should be weighted against  him. This  conclusion was  recorded  after reference to  the earlier  decisions in  Brooke  Bond  India (Pvt) Ltd.  v. Subba  Ramman (S)  and Anr. and Dunlop Rubber Co. v.  Workmen. Reference  was made to Pet’s case, referred to earlier,  but it  is observed  that  this  case  has  not commended itself  to this  Court. The  earlier cases of this Court were  distinguished. In  our view  we have  reached  a stage in  our onward  march to fairplay 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. This view has  been   taken  by  a  learned  Single  Judge  and  while dismissing the  appeal in  If mine  approved by the Division Bench of  the High  Court commends  to us.  Therefore,  this appeal is liable to be dismissed.      We would  reach the  same conclusion  for  a  different reason altogether.  The first  respondent while submitting a reply to  the charge-sheet  dated 14th  April 1975 requested the Chairman of the appellant to permit him assistance of an advocate at  the enquiry.  This request  was refused and the decision was  conveyed by the Dock Manager as per his letter dated March  1975. The enquiry opened p on April 13,1976. By May 8,  1976 evidence of only one out of 25 witnesses of the employer was  offered  and  the  second  witness  was  under examination.  On  that  date  Bombay  Port  Trust  Employees (Regulation) 1976  admittedly came  into force. The relevant regulation 12(8)  is extracted  herein  before.  The  latter portion of  the regulation practically borrows the languages of sub.rule  (5) of  rule 15  referred to  herein before, in that it  provides that the delinquent officer may not engage a legal  practitioner for  the purpose unless the Presenting Officer appointed by the Disciplinary Authority is the legal practitioner or  the Disciplinary Authority having regard to the circumstances  of the  case so  permits. Now  the  first respondent had  already submitted  his request for appearing through a  legal practitioner at the enquiry. This eminently just request was turned down 838 on untenable  grounds, and  to make  matters worse  for  the delinquent employee  two law  officers of the appellant were appointed Presenting-cum-Prosecuting Officers. Assuming that in the  absence of rules the Chairman has a discretion which was required  to be  exercised  wisely  yet  taking  shelter behind legal  facade it  was  exercised  against  the  first respondent because he was not under any statutory obligation to grant  this request.  However, when Regulation 12(8) came into force  the situation  materially altered  and the large number of  witnesses almost  all except  one  were  examined after the  Regulation came  into force  and  which  made  it

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obligatory to  grant the  request of  the  first  respondent because the  regulation provided  granting of  permission to appear  and   defend  by   a  legal  practitioner  once  the department was  represented by legally trained minds. A very feeble submission  was made  by Mr.  Nariman that  after the Regulation 12(8)  came  into  force,  the  request  was  not renewed. In  our  opinion,  that  is  hardly  relevant.  The unjustly refused  request was  already there  and obligation under  the   regulation  coupled  with  fairplay  in  action demanded that the employer should have suo motu reviewed his order refusing  the request. In fact one can go so far as to say that  the Enquiry  Officer in order to be fair and just, whenever he  finds the  employer appointing  legally trained persons as  Presenting cum-Persecuting Officers must enquire from the  delinquent employee before commencement of enquiry whether  he  would  like  to  take  assistance  of  a  legal practitioner.  The   option  then  is  with  the  delinquent employee. In  this connection,  we would  like to refer to a weighty   observation    on   this   point   where   despite constitutional inhibition  this Court conceded such a right. In K.  Roy v.  Union of  India(1) the  learned Chief Justice while rejecting  the contention  that  a  detenu  should  be entitled to  appear  through  a  legal  adviser  before  the Advisory Board  observed that  Art. 22(3)(b)  makes it clear that the  legal practitioner  should  not  be  permitted  to appear before  an Advisory Board for any party. While noting this  constitutional  mandate,  the  learned  Chief  Justice proceeded to  examine, what  would  be  the  effect  if  the department is  represented before  the Advisory  Board by  a legally trained person. It was held that in such a situation despite the  inhibition of  Art. 22(3)(b) the fair procedure as contemplated  by Article  21 requires  that a  detenu  be permitted to appear by a legal practitioner. Thus spoke  the learned Chief Justice:           "We must  therefore make  it  clear  that  if  the      Detaining or  Authority or  the Government take the aid      of a legal practi- 839      tioner or  a legal  adviser before  the Advisory Board,      the detenu  must be  allowed the  facility of appearing      before the  Board through  a legal practitioner. We are      informed  that   officers  of  the  Government  in  the      concerned departments often appear before the Board and      assist it  with a  view  to  justifying  the  detention      orders. If  that be so, we must clarify that the Boards      should not permit the authorities to do indirectly what      they cannot  do directly;  and no one should be enabled      to take  shelter behind  the excuse  that such officers      are not "legal practitioners" or legal Advisers."- And this  view was  taken as  flowing  from  Art.  21  which mandates that  no one  shall be  deprived  of  his  life  or liberty except  in accordance  with the procedure prescribed by law. The expression ’life’ does not merely connote animal existence  or   a  continued   drudgery  through  life.  The expression ’life’  has a  much wider meaning Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation  or livelihood  of a  person, some  of the finer graces  of human  civilization which  make life  worth living would  be jeopardised  and the  same can  be  put  in jeopardy only  by law which inheres fair procedures. In this context one  can recall  the famous  words of  Chapter II of Bhagwad Gita:           Sambhavitasya Cha Kirti Marnadati Richyate      Therefore in  this case, there can be no doubt that for the additional  reason that  after the Regulation 12(8) came

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into force,  the first  respondent should  have been given a reasonable opportunity  to appear through legal practitioner and failure  on their  part had  vitiated the  enquiry.  For these reasons, this appeal fails and is dismissed with costs quantified at Rs. 2,000.      Now, we  may note  the consequence of this decision. As the decision  reached by the domestic tribunal is held to be vitiated  on  the  ground  that  the  enquiry  was  held  in violation of the principles of natural justice on the ground that the  first respondent  was not  afford- ed a reasonable opportunity to  defend himself, the High Court was justified in quashing  the order of dismissal. The sequel to our order would certainly  mean that it would be open to the appellant to continue  the enquiry.  But  it  must  be  expedited.  We therefore direct  that while continuing the enquiry, it will be open  to the  appellant to treat the examination-in-chief of each  witness already  recorded  during  the  enquiry  as proper but all witnesses examined at 840 the enquiry  will have to be offered to the first respondent for cross-examination  and the  respondent would be entitled to appear  through a  lawyer of  his choice and even examine witnesses and participate in the enquiry. The earlier cross- examination may also be retained as part of the record. Both sides would  be  entitled  to  adduce  fresh  evidence  both document  and  oral,  if  considered  necessary.  The  first respondent would  be entitled  to call upon the appellant to produce  any   document  which   he  desires  for  effective adjudication subject  to the decision of the Enquiry Officer about its  relevance and  necessity for  efficient and  just disposal of  the enquiry. As the order of dismissal is being set aside  and the  enquiry is  being continued,  the  order suspending  the   first  respondent’  from  service  pending enquiry would  be  revived  and  the  appellant  should  pay subsistance allowance  throughout this  period and  till the end of  the enquiry which would be continued hereafter after taking credit  of whatever  payment that had been made since the suspension  order and  till today.  The  payment  herein directed should be made within a month from today. P.B.R.                                     Appeal dismissed. 841