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Judgment
Anand. C. J.
The only question involved in this writ appeal is whether in a disciplinary proceedings where the employer is represented by an Inspector from
the Central Bureau of Investigation to present its case the employee is entitled to legal assistance of a lawyer? The question arises in the following
circumstances:
The appellant, at the relevant time, was serving as Joint Director, Export Inspection Agency, Madras. Disciplinary proceedings were initiated
against him on various charges detailed in the article of charges vide order dated 12th June, 1984. The appellant filed Writ petition No. 1 1678 of
1984 challenging the enquiry and sought quashing of the charges. An interim stay was granted at the time of the admission of the writ petition and
the departmental enquiry was stayed. Subsequently it appears that the interim stay order was modified and it was directed that while the enquiry
could go on, the final order should not be passed. It further appears that after the enquiry proceedings commenced when the appellant filed an
application seeking permission to be represented by a legal practitioner on the ground that the presenting officer on behalf of the Department was
an Inspector of the Central Bureau of Investigation and was thus a legally trained person. That application was rejected vide Order No.EJC,
D(Q/C)/Vig(49)/84/9730 dated 21st November, 1984. The appellant was informed that the Inspector, Central Bureau of Investigation who was
to the Presenting Officer was neither a public Prosecutor nor a legal practitioner. The appellant was informed that he himself being a law graduate
while the presenting officer of the Department was not even a law graduate, his request for assistance by a legal practitioner during the enquiry
could not be acceded to. The appellant thereafter addressed another communication to the competent authority on 15th April, 1985, that is almost
five months after the rejection of his prayer, seeking re-consideration. The competent authority found that there was no justification to reconsider
and that his prayer for being represented by a legal practitioner could not be agreed to. This was communicated to the appellant vide
communication No. ETC/D(Q)/(C)/Vig.(49)/85/ 758 dated 19th April, 1985. The appellant then preferred an appeal on 27th April, 1985 under
Rule 20(iv)(b) of the Export Inspection Agency Employees (Classification, Control and Appeal) Rules, 1978. He questioned the rejection of the
prayer to be represented by a legal practitioner in the said appeal. The appeal was rejected by the Chairman vide order No.ETC/D(QC)/Vig(49)/
85/1284 dated 7th May, 1985. That order was questioned by the appellant before the learned single Judge through writ petition No. 5683 of
1985. The order has been extracted by the learned single Judge in the judgment under appeal and we need not reproduce the same. The learned
single Judge found that the appellant could have no valid claim to be represented by a legal practitioner since he was ""not pitted against any legal
brain"". The writ petition was dismissed. Hence the appeal.
Appearing before us the learned Counsel for the appellant referred to the judgment of the Supreme Court in C.L. Subramaniam Vs. Collector of
Customs, Cochin, . He also placed reliance upon Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and
Others, , while reiterating the same plea as was raised before learned single Judge.
It is not disputed before us, as indeed it could not be, that the Inspector of the Central Bureau of Investigation who is the Presenting Officer on
behalf of the employer is neither a law graduate nor a legal practitioner or a ''legally trained person/The submission of the learned Counsel for the
appellant, however, is that since the Presenting Officer is an Inspector of the Central Bureau of Investigation, he would be having knowledge with
regard to examination and cross-examination of witnesses, and it would be in the fitness of things that the appellant should also, in the interest of
justice, be permitted to be represented by a legal practitioner.
So far as C.L. Subramaniam Vs. Collector of Customs, Cochin, is concerned. Their Lordships were considering the effect of Rule 15(5) of the
Central Civil Services (Classification, Control and Appeal) Rules, 1967 and they opined that under Rule 15(5) of the Rules a Government servant
charged with dereliction of duty or with contravention of the rule is entitled to be represented by another Government servant or in ""appropriate
cases by a legal practitioner. Their Lordships however, did not classify as to which would be the ""appropriate"" cases where the Government
servant would, of right, be entitled to be represented by a legal practitioner, they left the matter to be decided in each case on its own facts.
So far as Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, is concerned. Their Lordships, after
considering a number of judgments opined 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 that request would amount to denial of reasonable
opportunity to defend himself and the essential principles of natural justice would be violated.
On facts, both the judgments have no application to the present case. There is indeed no common law right granted to a government servant to
have the assistance of a lawyer in a domestic enquiry. It is well-settled that where the rules in a particular case do not enable an employee to have
the assistance of a lawyer, the refusal of the competent authority to permit him to engage the services of a lawyer would not amount to denial of
any fair opportunity and there would be no question of violation of the rules. In case the Rules provide for the employer to be represented by a
legally trained hand, it would indeed be a violation or fair-play in action, if an employee is denied the assistance of a legal practitioner. Even where
the rules are silent, it would be a violation of the principles of natural justice if an employer is granted an opportunity Of being represented by a
legal practitioner or a legally trained mind but an employee is denied that opportunity. In the instant case, the Presenting Officer on behalf of the
employer is neither a law graduate nor a legal practitioner or a legally trained mind. Of course, it cannot be disputed that he has experience in the
art of investigation may be also in the act of examination of witnesses. There would have been a violation of the principles of natural justice and the
appellant would have been put to an unfair treatment had the competent authority denied any opportunity to the appellant to take the assistance of
another Government employee to defend him who was experienced in the matter like the Presenting Officer of the employer. But the competent
authority by communication No. ETC/ D(Q)/(C)/Vig.(49)/85/758 dated 19th April, 1985 while refusing permission to the appellant to be
represented by a legal practitioner, referred to Rule 11(8) of the Export Inspection Agency Employees Classification, Control and Appeal Rules,
1978 and informed the appellant:
Rule 11(8) of the Export Inspection Agency Employees (Classification, Control and Appeal) Rules, 1978 provides that the Agency employee may
take the assistance of any public servant to present the case on his behalf. In accordance with this Rule. Shri Ambat is not debarred from taking the
assistance of any public servant, who is experienced in the art of investigation, examination and cross-examination of witnesses etc.
(Emphasis Supplied)
The above direction shows that the competent authority has acted fairly and placed both the parties evenly instead of there having been any breach
of the principles of natural justice, we find that the principles of natural justice were very much present to the mind of the competent authority and
his action has been in furtherence of the same rather than in breach thereof.
The grievance projected by the learned Counsel for the appellant, therefore, has no merit, and in our opinion, the learned single Judge was
justified in dismissing the writ petition. We do not see any justification to take a contrary view in the Case either, particularly in view of the facts of
the case. Admittedly the enquiry had commenced as early as in 1984, and almost 6 years have elapsed and the enquiry has progressed not an inch.
In the earlier Petition No. 11678 of 1984 where the charges were sought to be quashed, no grievance was projected about the appellant not being
permitted to be represented at the domestic enquiry through a legal practitioner. It shows that the argument raised on behalf of the employer that
the appellant raised on behalf of the employer that the appellant is only adopting delaying tactics for the conclusion of the enquiry cannot be
brushed aside as a wholly untenable statement. In the facts and circumstances of the case, the answer to the question posed in the opening part of
the judgment is in the negative.
Thus, for what has been said above, this writ appeal fails and is dismissed. Interim directions given by this Court in this appeal shall stand
vacated forthwith. There will, however, be no order as to costs.