Skip to content


K.S. Cyriac Vs. Vice-chancellor, Kerala University, Trivandrum and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 3274 of 1973
Judge
Reported inAIR1975Ker158
ActsConstitution of India - Article 226
AppellantK.S. Cyriac
RespondentVice-chancellor, Kerala University, Trivandrum and ors.
Appellant Advocate Manuel T. Paikeday, Adv.
Respondent Advocate K.P. Radhakrishna Menon, Adv. and;Govt. Pleader
Cases ReferredPett v. Greyhound Association Ltd.
Excerpt:
.....of a person to be heard before he is condemned of any charge, that right would not comprehend the right to be represented by an agent including an advocate, except where an the facts and in the circumstances of the case, principles of natural justice require that he should be allowed a hearing through any agent or advocate. it may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them (like an english jury in ancient days) are themselves both the witnesses and the judges. nobody is more conscious of the fact than myself that administration of justice by our courts of law cannot be effectively and expeditiously carried out without the assistance of the learned advocates. a person accused of a charge should have a reasonable opportunity for..........court held that a workman has no right to be represented by a representative of his union in a domestic enquiry against him for misconduct. the above decision was followed by the supreme court in brooke bond india (p) ltd. v. s. subba raman, (1961) 2 lab lj 417 (sc). after referring to its earlier decision, the court said-'in the present case, the two employees even went further; one of them wanted to be represented through counsel while the other wanted to be re-presented through an outsider. neither of them apparently wanted to be represented by somebody from the union. in view therefore of the decision in kalindi case, we cannot agree that, as a counsel or outsider was not allowed to appear on behalf of the employees, there was no fair or full inquiry in the case,'the above.....
Judgment:
ORDER

M.U. Isaac, J.

1. The petitioner was a ore-degree student of the Newman College. Thodupuzha. He sat for the University examination held in April-May 1972 at that college. On 6-6-1972. when he was writing Mathematics Paper I the invigilators detected the petitioner committing malpractice. They reported the matter to the Chief Superintendent, who immediately came to the scene, and took the petitioner's answer book into custody; but the petitioner ran away with the paper from which he was copying. The Chief Superintendent appointed the third respondent, who is the Professor of Chemistry in that college, to enquire into the above misconduct. The third respondent framed charges against the petitioner and issued a notice Ext. R-l dated 9-8-1972. calling upon the petitioner to submit his explanation, and show cause why he should not be punished. The petitioner submitted an explanation Ext. R-2 dated 14-8-1972 denying the charges, and requesting that he may be allowed to engage a lawyer to cross-examine the witnesses. He also objected to the competency of the third respondent to conduct the enquiry on the ground of bias.

The third respondent did not accede to the petitioner's objection to the validity of the enquiry, nor did he allow the engagement of an advocate by the petitioner. The third respondent furnished to the petitioner copies of the relevant documents as well as the names and particulars of the witnesses proposed to be examined at the enquiry, and gave him notice fixing the enquiry on 30-8-1972. But before that date, the petitioner filed O. P. No. 3918 of 1972, and obtained from this Court an ex parte order of interim stay of the enquiry. Accordingly, the enquiry did not take place on 30-8-1972. The O. P. was dismissed by this Court on 10-11-1972. The petitioner then filed W. A. No. 338 of 1972 from the Judgment in that case; and it was dismissed summarily. Then the petitioner issued a registered notice, Ext. p-1 dated 3-4-1973 through his advocate to the first respondent calling upon him to drop the enquiry for the numerous grounds stated therein and to announce the examination result of the petitioner. The first respondent replied by his letter. Ext. P-2 dated 11-4-1973, stating that the University rules did not permit the announcing of the result of an examination of a student charged with malpractice, until the enquiry was completed, and that the Principal of the College had been requested to expedite the enquiry. The petitioner's advocate, by his letter. Ext. P-3 dated 15-4-1973, again wrote to the first respondent objecting to the validity of the proposed enquiry and Quoting a few English and Indian decisions in support of his contention.

2. On 16-5-1973, the third respondent issued a notice Ext. ,P-5 to the petitioner fixing the enquiry to 22-5-1973. The petitioner sent a reply to Ext. P-6 dated 20-5-1973 refusing to participate in the enquiry for the reasons which he had already stated. Thereupon the third respondent considered the materials in support of the charges against the petitioner, found him guilty of the same, and sent a report to the Chief Superintendent, who forwarded the same to the University. It appears that the first respondent considered the matter; and, in consultation with the Sub-Committee on Discipline he held that the examination taken by the petitioner be cancelled and that the petitioner be debarred from appearing for any examination of the University earlier than in October 1973. Accordingly, the second respondent, the Controller of Examinations issued a notice, Ext. P-7 dated 30-7-1973, to the petitioner, calling upon him to show cause within 15 days of the receipt thereof why the proposed punishment should not be imposed on him. This notice was received by him on 7-8-1973. The petitioner replied by his letter Ext. P-8 dated 9-8-1973, stating that the petitioner should have true copies of the evidence recorded at the enquiry and the report of the enquiry officer. He also requested for a personal hearing through his advocate after furnishing him copies of the above documents. The second respondent did not nav any heed to Exhibit p-8: but he informed the petitioner by his letter Ext. P-9 dated 20-8-1973 that it had been decided to impose on the petitioner the punishment proposed in the notice Ext. P-7. Thereupon, this Original Petition has been filed on 28-9-1973 to quash Exts. P-3. P-7 and P-9, and to command the second respondent to announce the result of the petitioner's examination.

3- Counsel for the petitioner Urged three grounds. Firstly an enquiry by1 the third respondent was violative of natural justice, since he is biased in the matter. Secondly, the petitioner has a right to be represented by a' advocate in the enquiry; and enquiry is bad under law since this right was denied to him. Thirdly, the punishment imposed on him as per Ext. P-9 is bad under law, since that was done without giving him a proper opportunity of being heard.

4. The petitioner is entitled to succeed on the third ground. The show cause notice. Ext. P-7 was served on the petitioner only on 7-8-1973, and it gave him 15 days time to show cause. Immediately on receipt of that notice, the petitioner wrote to the second respondent re-questing for copies of the evidence of the witnesses and the report of the enquiry officer for enabling him to submit his explanation. There was no response to this request. The third respondent did not conduct any oral enquiry, since the petitioner did not appear for the enquiry. Therefore, there was no question of giving him copies of the evidence: but he was entitled to set a copy of the enquiry report, and a reasonable opportunity to submit his explanation to the findings therein. Admittedly this was not done; and the impugned order. Ext. P-9 was issued even before the expiry of the period allowed to him by Ext. P-7 to submit his explanation. So this order is bad under law.

5. The first ground raised by the petitioner is concluded against him by the decision of this Court in the previous O. P. In the judgment in that case, the learned Judge stated-

'The basis of the petitioner's argument is that the principles of natural justice require that the inquiry into the charge of misconduct should be done fairly and impartially in accordance with rules of natural justice, and in circumstances which ensure that the enquiry and disciplinary authorities are free from any bias against the petitioner. It was said that the unsolicited sermon or advice delivered by the 2nd respondent to the petitioner in his room on 7-6-1972 in the presence of the 1st respondent, amounted really to a conviction of the petitioner before the enquiry or trial began, and that in such circumstances he cannot expect justice at the hands of the 1st respondent, or the 2nd respondent, or both. This was emphasised by pointing out that the 2nd respondent had filed no counter-affidavit at all in this writ petition.

The 1st respondent has denied the allegation made against him that he advised the petitioner to confess his guilt and preached to him the futility of defending himself at the enquiry or carrying the matter to a Court. I am not prepared to accept the petitioner's averments on this aspect. No foundation has therefore been laid for any bias on the part of the Respondents or any reasonable apprehension for the petitioner that he will not get justice. There is also the fact that according to Ext. P-3 rules which are to govern the enquiry, cases of mal-practice are to be reported to the University which, on being satisfied of a prima facie case, will request the Principal of the college centre where the candidate appeared for the examination, to appoint the Enquiry Officer and submit the report of the enquiry. The Principal has to appoint a person not below the rank of a Professor employed in the college as an Enquiry Officer. The Enquiry Officer should frame charges together with the statement of allegations, send the same to the student, receive his explanation and conduct the enquiry and submit the enquiry report to the Registrar. The Vice-Chancellor in consultation with the Sub-Committee on discipline constituted by the Syndicate shall take a provisional decision as to the penalty to be imposed, which is to be finally done by the Vice-Chancellor. These being the Rules for enquiring into the misconduct, the 2nd respondent is only a conduit pipe to conduct the enquiry and transmit report to the University, the final decision having to be taken only by the Vice-chancellor. Any allegation of bias in such circumstances, against the 2nd respondent or the 1st respondent, or both seems to have no foundation and carries little weight.'

The learned Judge has also briefly considered in the same judgment the second ground raised herein. He stated.-

'As for the petitioner's contention that he is entitled to the services of a lawyer to defend him at the enquiry, it was not shown that he is entitled as a matter of right, to engage a lawyer to appear at the enquiry. I am not satisfied, at this stage, that he is entitled to the service of a lawyer .as part of the rules of natural justice entitling him to a reasonable opportunity of defending himself.'

In the light of the very guarded language used in the above passage, and in view of the fact that the petitioner is now seeking the right of being heard through an advocate not only at the stage of examination of witnesses at the enquiry but also at the final stage of the enquiry, his counsel submitted that the question has to be considered afresh. He submitted that it is the fundamental right of every person who is accused of a delinquent act and who would be visited with serious consequence, if found guilty of the charge, to be represented by an advocate or other competent agent at the enquiry. In support of the above prodosition. he relied strongly on the following passage appearing in the judgment of Lord Denning. M. R. in the decision of the Court of Appeal in pett v. Greyhound Racing Association Ltd.. (19681 2 All ER 545.--'Now the point arises: has the trainer a right to be legally represented The club object to any legal representation Their secretary states in his affidavit :

'If legal representation were allowed as of right, the delay and complications that this would cause would largely frustrate the stewards' intention to conduct their meetings expeditiously and with complete fairness-'

Counsel for the defendants, says that the procedure is in the hands of the stewards. If they choose to say: 'We will not hear lawyers', that is for them, he says, and It is not for the Courts to interfere.

I cannot accept this contention. The plaintiff is here facing a serious charge. He is charged either with giving the dog drugs or with not exercising proper control over the dog so that someone else drugged it. If he is found guilty, he may be suspended or his licence may not be renewed. The charge concerns his reputation and his livelihood- On such an enquiry, I think that he is entitled not only to appear by himself but also to appoint an agent to act for him. Even a Prisoner can have his friend. The general principle was stated by Stirling. J. in Jackson & Co. v. Napper, Re Schmidt's Trade Marks. ( (1886) 35 Ch D 162 at P. 172):

'.........that, subject to certain well-known exceptions, every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right.'

This was applied to a hearing before an assessment committee in the case of R. v. St Mary Abbotts, Kensington Assessment Committee, (1891) 1 QB 378, It was held that a ratepayer had a right to have a surveyor to appear for him. Once it is seen that a man has a right to appear by an agent, then I see no reason why that agent should not be a lawyer. It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate savs to a man: 'You can ask any questions you like'; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task 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.

I am aware that Maugham, J. once expressed a different view. In Maclean v. Workers Union. (1929) All ER Rep 468 at p. 471 = ( (1929) 1 Ch 602 at p. 621) speaking of domestic tribunals, he said:

'Before such a tribunal counsel have no right of audience and there are no effective means of testing by cross-examination the truth of the statements which may be made.'

All I would say is that much water has passed under the bridges since 1929- The dictum may be correct when confined to tribunals dealing with minor matters where the rules may properly exclude legal representation. (Re. Macqueen and Nottingham Caledonian Society. (1861) 9 CBNS 793, seems to have been such a case). The dictum does not apply, however, to tribunals dealing with matters which affect a man's reputation or livelihood or any matters of serious import. Natural justice then requires that he can be defended, if he wishes, by counsel or solicitor,'

Lord Justices Davies and Russell concurred with the above opinion. Russell L. J. went to the extent of stating that it is a common Law right of the plaintiff to do by agent or representative, including counsel, that which under procedure he is entitled to do. namely question witnesses and address the stewards.

6. With great respect, I embolden myself to disagree with the view expressed by the great Law Lords. While I agree that it is a fundamental right of a person to be heard before he is condemned of any charge, that right would not comprehend the right to be represented by an agent including an advocate, except where an the facts and in the circumstances of the case, principles of natural justice require that he should be allowed a hearing through any agent or advocate. Physical incapacity to defend himself would be one instance. Engagement of a legally trained person or advocate by the prosecution may be another ground which would entitle an accused to engage an agent or advocate to defend him.

7. In England also, the opinion on this question is divided as can be seen from the judgment of Maugham. J., in (1929) 1 Ch 602, to which Denning, M. R himself has referred. Dealing with the difference between a court of justice and a domestic tribunal and the right of representation through an advocate, the learned Judge stated:--

'Speaking generally, it is useful to bear in mind the very wide differences between the principles applicable to Courts of Justice and those applicable to domestic tribunals. In the former the accused is entitled to be tried by the judge according to the evidence legally adduced arid has a right to be represented by a skilled legal advocate. All the procedure of a modern trial, including the examination and cross-examination of the witnesses and the summing-up, if any, is based on these two circumstances. A domestic tribunal is in general a tribunal composed of laymen. It has no power to administer an oath and, a circumstance which is perhaps of greater importance, no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence; it is indeed probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them (like an English jury in ancient days) are themselves both the witnesses and the judges. Before such a tribunal counsel have no right of audience and there are no effective means for testing by cross-examination the truth of the statements that may be made.'

It is true that much water has passed under bridges, since the above decision was rendered. But the difference between the character of a proceeding before a court of justice and domestic tribunal remains the same: and therefore the right to be heard through an advocate in a court of law cannot be extended to, or claimed in a proceeding before a domestic tribunal. There are several statutes in our country which expressly prohibit representation through an advocate before statutory tribunals. There is no doubt that advocates form part of the machinery for administration of justice. Nobody is more conscious of the fact than myself that administration of justice by our courts of law cannot be effectively and expeditiously carried out without the assistance of the learned advocates. But the position is not the same as regards many domestic tribunals are concerned. It is a fact, though to be stated with regret, that if advocates are allowed to appear before such tribunals constituted of laymen, they would protract the enquiry and confuse the issues; and it would in some cases even defeat the purpose for which such tribunals are set up. That is why the Legislature has exercised the wisdom of excluding the advocates from domestic enquiries, and not because of any disrespect to this great class of professional men. In this context, it is useful to notice the relevant provision in the Advocates Act. 1961. Section 30 of the Act states-

'30. Subject to the provisions of this Act, every advocate whose name is entered in the common roll shall be entitled as of right to practice throughout the territories to which this Act extends.-

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.' The above provision defines the extent of the right of an advocate to represent a client. I think that it also lays down the limits of the right of a person to be represented by an advocate. There is no case that an advocate has under the above provision a right of appearance for his client before an enquiry officer appointed to conduct an enquiry into an alleged mal-practice committed by a student in an examination. If an advocate has no such right, it follows that a student cannot also have a right to be represented by an advocate. Otherwise it will be creating in an advocate a right which is not given to him by the above statutory provision.

8. I shall now refer to some of the Indian decisions on this Question. In Rajagopalan v. Collector of Salt Revenue, AIR 1937 Mad 735, it was conceded before a Division Bench of the Madras High Court that a Government servant has no common law right to be defended by an advocate in a disciplinary enquiry against him. The correctness of this proposition was canvassed in Veeraswami v. Provincial Government of Madras, AIR 1948 Mad 379 before another Division Bench of that Court. Horwill. J., who delivered the judgment of the court, affirmed the above proposition, after examining the case law on the subject. His Lordship also pointed out that the decision of the Federal Court in Quadratullah v. North West Frontier Province, (AIR 1944 FC 72) supported this proposition. In that case, the Federal Court rejected an argument that the enquiry against the delinquent officer in that case was violative of natural justice, since he was not allowed to be represented by an advocate.

9. In Kalindi v. T. Locomotive & Engineering Co., AIR 1960 SC 914 the Supreme Court held that a workman has no right to be represented by a representative of his union in a domestic enquiry against him for misconduct. The above decision was followed by the Supreme Court in Brooke Bond India (P) Ltd. v. S. Subba Raman, (1961) 2 Lab LJ 417 (SC). After referring to its earlier decision, the court said-

'In the present case, the two employees even went further; one of them wanted to be represented through counsel while the other wanted to be re-presented through an outsider. Neither of them apparently wanted to be represented by somebody from the union. In view therefore of the decision in Kalindi case, we cannot agree that, as a counsel or outsider was not allowed to appear on behalf of the employees, there was no fair or full inquiry in the case,'

The above decisions were referred to and followed by a much later decision of the Supreme Court in C. L. Subramo-niam v. Collector of Customs, Cochin, AIR 1972 SC 2178. The decision of the Court of Appeal in Pett v. Greyhound Association Ltd., end the judgment of Denning, M, R. in that case have been considered by the Supreme Court in C, L. Subramoniam's case, and the court stated that the rule laid down in Pett's case has not commended itself to that court. In the light of the above pronouncement, counsel for the petitioner cannot rely on the above English decision as laying down a common law right applicable to India. The right to be heard through an agent or advocate is not a common law right in this country. All that is required is that the principles of natural justice should be complied with; a person accused of a charge should have a reasonable opportunity for being heard before he is condemned. In the absence of any statutory provision or other rule of procedure, the question whether denial of representation through an advocate amounts to denial of natural justice is one of fact to be decided on the particular facts and circumstances of the case. I have no doubt that a student who is accused of mal-practice in an examination and who is called upon to submit to a domestic enquiry to be conducted by one of the Professors of his college has no right to be represented through an advocate in that enquiry. I must also add that this is an unusual claim. The enquiry officer acted properly in refusing permission to the petitioner to be represented by an advocate.

10. In the result, I quash the impugned order, Ext. P-9, on the short ground that it was passed before the expiry of the period allowed to the petitioner for showing cause against the proposed punishment and without furnishing him copy of the enquiry report so as to enable him to submit his explanation. The respondents will be free to complete the enquiry initiated against the petitioner according to law. This Original Petition is allowed to the above extent and dismissed in other respects. In the circumstances of the case, the parties with suffer their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //