1. On 16th September, 1954 the appellant (original petitioner) joined the All India Khadi & Village Industries Commission as manager. In course of time he was promoted to the post of Deputy Director and in that capacity, on 6th June, 1968 was transferred to Bhubaneshwar, Orissa. In August 1970 he was in due course transferred to Bombay.
2. On 17th May, 1974 the appellant was issued a show cause notice informing him that a departmental enquiry was proposed to be held against him and one Dora in respect of 9 charges listed in the annexures. Those charges pertained to certain alleged acts of the appellant during his tenure at Bhubaneshwar in 1968-70. Inspector Ghosh of the C.B.I. was appointed as the presenting (prosecuting) officer. After the conclusion of the enquiry, the enquiry officer submitted his findings to the Disciplinary Authority on 1st August, 1977. The enquiry officer found the appellant guilty of 5 charges. Regarding 3 charges, the enquiry officer did not record a finding but left the conclusion to be recorded by the Disciplinary Authority. The enquiry officer exonerated the appellant in respect of one charge.
3. On 13th March, 1978 the Disciplinary Authority issued a memorandum calling upon the appellant to show cause against imposition of punishment. This was followed by the appellant's replies dated 20th March, 1978 and 15th April, 1978 and thereafter by the Disciplinary Authority's order dated 18th December, 1978 demoting the appellant to the post of Assistant Director and debarring him from promotion for 3 years.
4. The appellant's letter dated 1st January, 1979 asking for justice provoked the Disciplinary Authority into issuing a Memo dated 19th February, 1979 calling upon the appellant to show cause why the penalty of demotion should not be enhanced to the penalty of dismissal. Thereupon the appellant tiled a writ petition whereafter the matter of dismissal was dropped by the disciplinary Authority and instead a memo dated 20th March, 1980 was issued confirming the earlier demotion order dated 18th December, 1978. The demotion order was challenged by the appellant in a writ petition. It was dismissed by the learned single Judge. Hence present appeal.
5. One of the grounds of challenge to the demotion order, propounded by the appellant's learned counsel Mr. Cama was violation of the principles of natural justice in as much as the appellant was deprived of legal assistance to which he was entitled under Regulation 26(5) of the Khadi & Village Industries Commission Employees (Conduct, Discipline and Appeal) Regulations, 1961. The other grounds of challenge were : (A) The entire chargesheet does not reflect any misconduct under regulation 3(1). At the highest the charges disclose inefficiency. (B) Under Regulation 26(4) the enquiry officer could be appointed only after and not before the consideration of the chargesheeted employees' reply to the chargesheet and show cause notice. (C) The charges framed were vague as is manifest from the fact that the enquiry officer himself had difficulty in understanding the meaning of certain words used in 4 of the charges. (D) The enquiry officer was biased against the appellant. (E) In respect of 3 of the charges, the enquiry officer abrogated his duty by referring his finding to the Disciplinary Authority. (F) There is no material on record to establish any of the charges. (G) The Disciplinary Authority's order dated 13th March, 1978 confirming the enquiry officer's findings does not give reasons for holding the appellant guilty of 3 of the charges. (H) The demotion order dated 18th December, 1978 is not a speaking order.
6. This appeal can conveniently be disposed of by analysing Mr. Cama's challenge on the ground of violation of the principles of natural justice. Mr. Cama submits that under Regulation 26(5) the appellant was deprived of legal assistance to which he was entitled, with the result that the principles of natural justice were violated.
7. It is not in dispute that as far back as 2nd July, 1974 the appellant wrote a letter to the Chief Executive Officer asking for permission to engage a lawyer because (i) the prosecuting officer was a high-ranking C.B.I. officer, (ii) the number of witnesses was large, (iii) the charges grave, (iv) the appellant was not well versed in law and cross-examination and (v) many documents would be in Oriya language not known to the appellant. The request met with a refusal, which could hardly have been assuaged by the enquiry officer's consoling statement in his letter dated 18th March, 1975 that he also did not know Oriya.
8. Regulation 26(5) reads thus :-
'The disciplinary authority may nominate any person to present the case in support of the charges before the authority enquiring into the charges (hereinafter referred to as the enquiry authority). The Commission's employee may present his/her case with the assistance of any other Commission's employee approved by the disciplinary authority, but may not engaged a legal practitioner for the purpose unless the person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority having regard to the circumstances of the case, so permits.'
9. This Regulation has three limbs, namely, (a) any person may be nominated by the disciplinary authority to be the presenting (prosecuting) officer; (b) the delinquent cannot avail himself of the services of a legal practitioner unless the prosecuting Officer himself is a legal practitioner and (c) the delinquent may avail himself of a legal practitioner if permitted by the disciplinary authority 'having regard to the circumstances of the case.'
10. Coming to the first limb of Regulation 26(5), the Disciplinary Authority nominated Inspector Ghosh of the C.B.I. as prosecuting officer on the recommendation of the Government of India. The Government of India was entitled to make recommendation and the Disciplinary Authority was entitled to accept the recommendation, which it did. That takes care of that.
11. It is however in connection with the 2nd limb of Regulation 26(5) which in the circumstances of this case gives rise to the question : Were the principles of natural justice violated Our answer is : Yes, they have been violated for the reasons immediately appearing.
12. What disturbs us is that the appellant, who had never taken part in an enquiry before, was pitted against an adversary, viz., the prosecuting officer Inspector Ghosh of the C.B.I., who was far more than the appellant's match. It is true Inspector Ghosh was not a legal practitioner as commonly understood, or was even a qualified lawyer. We are informed by the respondents, learned Counsel Mr. Shah, that when in 1974 the matter was referred to the C.B.I. for investigation, the investigation was done by Inspector Ghosh. Therefore it was but right that the prosecution before the enquiry office should have been put into the hands of Inspector Ghosh whose ability even Mr. Shah does not rightly question. To that end no fault can be found with the Authority. But then, Inspector Ghosh was not only a high ranking officer. He was more than that, by way of his expertise in conducting prosecutions in domestic enquiries. In para 15 of the petition it is stated in terms that Inspector Ghosh had conducted innumerable domestic enquiries as prosecutor and was thus a 'trained prosecutor' within the meaning of Regulation 26(5). To that the only answer in the affidavit-in-reply is :-
'.... I deny that A. S. Ghosh was 'trained prosecutor' for the reasons alleged.
meaning thereby that Inspector Ghosh was not a 'legal practitioner' as provided in Regulation 26(5). Not a word by way of denial to the appellant's categorical assertion that Inspector Ghosh had conducted innumerable departmental enquiries as prosecutor. We repeatedly asked Mr. Shah to take instructions and let us know whether this presenting officer had in the past conducted departmental enquiries and if so approximately the number of times. Mr. Shah did take instructions but for the statement that Inspector Ghosh had not acted for the Commission in any other enquiry, he was unable to throw any other light in response to our queries. For that no blame can be attached to Mr. Shah because the affidavit-in-reply itself is found woefully wanting on this score.
13. This brings to the forefront that the prosecuting officer, Inspector Ghosh of the C.B.I., though not a legal practitioner, as commonly understood, was an experienced (and presumably able) officer with a number of domestic enquiries to his credit where he had acted as prosecutor. His, with experience, was a legally trained mind, pitted against the innocence abroad of the appellant in the conduct of domestic enquiries. Thus in the conduct of this long and complicated enquiry, the prosecuting officer would naturally have more than a mere edge over the appellant. The balance in favour of the prosecutor would indeed be considerable to the extent of titling the enquiry against the appellant contrary to the principles of natural justice. The department would have the benefit, as indeed entitled to, of having on its side, a mind trained by experience in prosecuting delinquents, while at the same time refusing the delinquent like opportunity of defending himself. Such an enquiry would be a one-sided enquiry in which the scales would be heavily weighed against the delinquent. We do not seek to pamper delinquents. Or look lightly upon their alleged delinquency. All that we say is : Give the man a fair opportunity to defend himself and if thereafter found guilty, punish him by all means. It was such fair opportunity that the appellant was denied.
14. The words 'legal practitioner' need not be taken in their literal sense. Legal qualifications are of little import. A layman, or for that matter a C.B.I. Inspector like Inspector Ghosh, would, through sheer experience as acting as prosecutor in departmental enquiries, indeed garner vast legal experience and ability without being a 'legal practitioner', as commonly understood. One of us (Lentin, J.) recalls the instance of the late P. D. Shamdasani who some 35 and odd years ago, in his own way chartered a course for himself in the Bombay High Court. He never acquired a law degree. Never even appeared for a law examination. Yet he acquired the experience and knowledge of Company Law to enable him to deftly argue his own cases with ability from Court to Court, right up to the Privy Council. And more often than not, with success. If Shamdasani fell foul of you, you scurried to the most expensive solicitor and buttressed yourself with an array of the most expensive legal practitioners, often to the discomfiture of both expensive legal practitioners, often to the discomfiture of both expensive solicitor and expensive legal practitioners. And much to the delight of one fledgling brief less barrister.
15. We digressed. Not in a moment of nostalgio luxury, but to emphasise that ability born out of vast practical experience in the law and conduct of cases (including departmental enquiries) is not confined to 'legal practitioners' as the words are commonly understood. These qualifications possessed by a non-professional (we prefer that description to the condescending word 'layman' patronisingly used by the learned in the law) would, to an unwary opponent be as dangerous as his having a 'legal practitioner' pitted against him.
16. We do not seek, much less mean, to belittle the experience and undoubted efficiency of the prosecuting officer Inspector Ghosh of the C.B.I. as prosecutor in departmental enquiries. We merely draw stark contrast, on the one hand between his vast experience and undisputed ability as a prosecutor in domestic enquiries, and on the other hand, the inexperience of the appellant pitted against him in a grave enquiry involving as many as 9 charges of a serious nature, sufficient, if found guilty, to ruin his reputation and career after 35 years of unblemished service. The words 'legal practitioner' in Regulation 26(5) cannot thus be read in their narrow sense as commonly understood. It is enough if the prosecuting officer, without being a 'legal practitioner', is a legally trained mind, as indeed was Inspector Ghosh, with his ability and vast experience as a prosecutor in domestic matters. Yet, pitted against him, the appellant was denied legal assistance and was told to shift for himself. Of course the department was correct and indeed justified in placing the prosecution of this complicated matter in the hands of such an indisputably experienced officer. The department could have done no less. At the same time, the department could have done more than refusing like opportunity to the appellant by denying him legal assistance. A most uneven match.
17. In Board of Trustees, Port of Bombay v. Dilipkumar : (1983)ILLJ1SC , the following were the observations of the Supreme Court in para 11 at page 6 -
'.... 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.'
It is here that the department was found wanting. It is here that the violation of the principles of natural justice is made manifest.
18. Far from rejecting the appellant's request for legal assistance, the department should itself on its own initiative have given liberty to the appellant to avail himself of legal assistance. The department did not do so and thereby denied the appellant a reasonable opportunity of defending himself. The department cannot be heard to say : Look even so the appellant did well for himself; look at the amount of his cross-examination and the arguments he advanced. It is not the volume but the quality that matters, pitted as he was against a prosecutor whose experience in domestic enquiries totally eclipsed the total lack of experience of the appellant. Compared to the department's prosecutor, the appellant was a babe in the woods. The very principles of natural justice were violated.
19. This brings us to the third limb of Regulation 26(5). The circumstances of the case warranted the exercise of the department's discretion in allowing the appellant the legal assistance sought by him.
20. At the enquiry 61 documents were listed and most of them, according to the appellant, were in Oriya. According to the respondents only a few were in Oriya. Out of 54 witnesses, 24 were examined by the prosecuting officer. The defence examined 14 witnesses and exhibited 60 documents. The enquiry took 10 sittings in 47 days. The prosecuting officer knew Oriya. The appellant did not. Neither did the enquiry officer. The evidence of the Oriya speaking witnesses was translated by the translator provided by the department and recorded in English by the enquiry officer. While we see no reason to assume that the poor dear translator was in league with the Oriya-knowing prosecuting officer and moulded the translation to suit him, the very ignorance of Oriya language by the appellant would itself be a tremendous handicap to the appellant, personally conducting his defence. This factor might well have permitted the department to exercise its discretion in allowing the appellant legal assistance. It is not enough for Mr. Shah to say that the appellant could have asked for the service of a Commission's employee knowing Oriya or that the appellant's co-delinquent knew the language. Surely, in a strange place among strange people, the appellant should have been allowed an independent Oriya speaking person of his confidence. And what could be a better choice than an Oriya-speaking local lawyer. Denied this, what choice had the appellant but to jog along with his Oriya-knowing co-delinquent having to rely on the translations given to him by the latter. What also was the guarantee that the co-delinquent being in the same boat as the appellant, would hold the scales even between himself and the appellant, charged as they were of acting in connivance with each other.
21. It is in these circumstances that we are of the opinion, that the department should have exercised it discretion under the 3rd limb of Regulation 26(5) and given the appellant the legal assistance asked for by him.
22. Holding as we do, that the principles of natural justice were violated, the enquiry and demotion order must be set aside. In the light thereof, the other challenges advanced by Mr. Cama become academic.
23. We however clarify that nothing we have stated in this judgment applies or is deemed to apply to the appellant's co-delinquent Dora. We do not know in what circumstances he was placed, nor do we need to. His petition, we are informed, is pending before another High Court which will naturally deal with it on its own merits.
24. On behalf of the respondents, Mr. Shah invites us to direct the department to hold a fresh enquiry against the appellant. On the other hand, Mr. Cama says that the department cannot do so as the appellant retired in May 1984. It is unnecessary for us to enter into this controversy. Both parties are relegated to such future course of action as they may be advised and permissible in law.
25. The appeal is allowed with no order as to costs. The enquiry proceedings and the demotion order dated 18th December, 1978 are set aside. The respondents shall be at liberty to hold a fresh enquiry, if so advised and permissible in law. In that event, the enquiry shall be commenced within two moths from today and shall be concluded as expeditiously as possible and in any event within two months from today and shall be concluded as expeditiously as possible and in any event within three months from its commencement. Should however no fresh enquiry be commenced, the respondents shall pay to the appellant all dues payable to him under the law and rules, other than pension, as the post was not pensionable until after the appellant's retirement. Such payment shall be made by 15th February, 1986. Rule is made absolute accordingly.