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Union of India (Uoi) Vs. Karunakaran Nair - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1986)ILLJ124Ker
AppellantUnion of India (Uoi)
RespondentKarunakaran Nair
Cases ReferredIn N.P. Padmanabhan v. Superintendent of Post Offices
Excerpt:
.....the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. therefore that authority clearly failed to exercise the power conferred on it under the rule. but, when the presenting officer, even if he is not a lawyer, is one who is well trained in prosecution work and if the delinquent officer cannot have the services of a legally trained person and is allowed only to have the services of a colleague of his who, in the normal course, will not be well-versed in the subject, it goes without saying that, that will be nothing but denial of an opportunity to the officer to defend himself in the disciplinary enquiry......resulted in the absence of fair procedure in the enquiry.4. upholding the above contention, the learned judge held:in order to hold the scales even, therefore, the board should have allowed the petitioner's request for assistance from an equally qualified person.when sub-rules (5) and (8) of rule 11 are read together, the picture we get is of an enquiry where both the presenting officer and the 'defending officer' (if such a phraseology can be used to denote the person assisting the delinquent) are either legal practitioners or laymen. the cbi, inspector chosen in the present case to support the charge was not a layman, in the context of the functions he had to discharge and in the background of his training; it was therefore unjust on the part of the authorities to have insisted that.....
Judgment:

Narendran, J.

1. These writ appeals are against common judgment in O.P. Nos. 1899 of 1980 and 3414 of 1981. Writ Appeal No. 658 of 1983 has been filed by the Union of India and the Chairman, Coffee Board, who were respondents in O.P. 1899 of 1980 while Writ Appeal No. 659 of 1983 has been filed by the Chairman, Coffee Board and the Deputy Vigilance Officer, Vigilance Division, Coffee Board, who were respondents in O.P. No. 3414 of 1981. The sole respondent in these writ appeals is none other than the petitioner in the above original petitions. The challenge is against the common judgment of the learned Single Judge allowing O.P. No. 1899 of 1980 and disposing of OP. No. 3414 of 1981 on the ground that the questions raised in that original petition will not arise for consideration in view of the fact that OP. No. 1899 of 1980 was allowed. The short facts are: The petitioner in the original petition (the respondent in the writ appeals) was a junior clerk of the Coffee Board from 1963 onwards. In 1969 he was promoted as Assistant Coffee Inspector and allotted to the 'field cadre'. In 1977 disciplinary action was initiated against him for bribery. He was reverted as junior clerk for a period of two years and that was the penalty imposed in the disciplinary proceedings. He appealed against that penalty, but that appeal was rejected. In OP. No. 1899 of 1980 the challenge was against Ext. P-2 order imposing the penalty on the petitioner and Ext. P-3 order rejecting his appeal.

2. After the two years period of reversion as junior clerk, the petitioner made a request for being posted as Assistant Coffee Inspector in the field, but the Board took a decision that he was unsuited for field work and that he could only be accommodated in the ministerial line. It was this decision, that was challenged in OP. No. 3414 of 198.1.

3. The main contention on behalf of the petitioner in OP. No. 1899 of 1980 was that in view of the fact that an Inspector of the C.B.I. was nominated as Presenting Officer, the petitioner's request for permission to be assisted by a legal practitioner ought to have been allowed and, by the rejection of the same, the petitioner did not get a reasonable opportunity to defend himself, which resulted in the absence of fair procedure in the enquiry.

4. Upholding the above contention, the learned Judge held:

In order to hold the scales even, therefore, the Board should have allowed the petitioner's request for assistance from an equally qualified person.

When Sub-rules (5) and (8) of Rule 11 are read together, the picture we get is of an enquiry where both the Presenting Officer and the 'Defending Officer' (if such a phraseology can be used to denote the person assisting the delinquent) are either legal practitioners or laymen. The CBI, Inspector chosen in the present case to support the charge was not a layman, in the context of the functions he had to discharge and in the background of his training; it was therefore unjust on the part of the authorities to have insisted that the Defending Officer could only be a layman.

The learned Judge held that Rule 11(5) of the Coffee Board Servant (Classification, Control and Appeal) Rules, 1967 was violated and allowed OP. No. 1899 of 1980. The learned Judge further held that the questions raised in OP. No. 3414 of 1981 did not arise for consideration in view of the fact that OP. No. 1899 of 1980 was allowed. It is against the above common judgment of the learned Single Judge that these writ appeals were filed.

5. The main contention of the learned Counsel for the appellants was that the learned Single Judge was not justified in interfering with the order imposing penalty on the ground mat denial to the respondent-petitioner of the services of a legal practitioner as the 'defending officer' has vitiated the disciplinary enquiry. The learned Counsel also pointed out that it was only before this Court that the respondent-petitioner complained that he was denied the services of a lawyer in the enquiry. The learned Counsel for the respondent-petitioner contended that when the presenting officer was a C.B.I. Inspector and the defending officer only a layman, the scales will not be equally loaded and that will, no doubt, cause prejudice to the delinquent officer and the enquiry will be vitiated.

6. In Board of Trustees, Port of Bombay v. D.R. Nadkarni 1983-I L.L.J. 1 Para 9, (Page 4).

Where in a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting-cum-Prosecuting Officer to represent the employer by persons who are legally trained, denial of a request of the delinquent employee, seeking permission to appear and defend himself by a legal practitioner, would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby violating one of the essential principles of natural justice.

In the above case, the Supreme Court upheld the judgment of the High Court of Bombay quashing the order of dismissal in the disciplinary enquiry and made it clear that it would be open to the Port of Bombay to continue the enquiry. In C.L. Subramanian v. Collector of Customs, Cochin 1972-I L.L.J. 465 Para 14, at page 469, it has been held.

The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. Therefore that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority refused to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself.

In the above case, holding that the facts of the case, are not such as to justify a fresh enquiry, the Supreme Court directed that no fresh enquiry should be held. In N.P. Padmanabhan v. Superintendent of Post Offices, Cannanore 1975 KLT 237 Chandrasekhara Menon J. interfered with a penalty imposed in a disciplinary proceedings on the ground that the enquiry officer did not afford the delinquent employee necessary facilities to have the assistance of another in service to defend him. But, in that case, the learned Judge made it clear that the authorities were free to decide whether a fresh enquiry should be conducted or not.

7. It is important that in an enquiry the delinquent officer should not be denied a full opportunity to prove his innocence. Normally, a lawyer has no place in a disciplinary enquiry. But, when the presenting officer, even if he is not a lawyer, is one who is well trained in prosecution work and if the delinquent officer cannot have the services of a legally trained person and is allowed only to have the services of a colleague of his who, in the normal course, will not be well-versed in the subject, it goes without saying that, that will be nothing but denial of an opportunity to the officer to defend himself in the disciplinary enquiry. The presenting officer need not be a lawyer for the delinquent officer to insist that he should be allowed to make use of the services of a lawyer. The presenting officer need only be a person who has got training in the techniques of a disciplinary enquiry. In this case, the C.B.I. Inspector who was the presenting officer, in the normal course, was more than a lawyer and the denial of the services of a lawyer to the delinquent officer was nothing but denial of natural justice to the delinquent officer, which has vitiated the whole disciplinary enquiry. In this view of the matter, there is no reason why this Court should interfere with the judgment of the learned Single Judge setting aside the order imposing the penalty on the respondent-petitioner.

8. The learned Counsel for the appellants contended that even if this Court is not interfering with the decision of the learned Single Judge setting aside the penalty imposed on the respondent-petitioner, it is only proper that the appellants are given the freedom to conduct a fresh enquiry in respect of the charges against the respondent-petitioner. There is no reason why a fresh enquiry should be there in all cases where the penalty imposed is set aside on the ground that the enquiry was vitiated. But, this freedom should be given to the disciplinary authority only if the circumstances of the case warrant. In this case, the respondent-petitioner suffered the penalty imposed on him. It was after the period of reversion was over that he approached this Court with the original petition. In such a case, there is no reason whatsoever that a fresh enquiry should be there because, already a penalty was imposed on the delinquent officer in the disciplinary enquiry conducted in respect of the charges against him. He suffered the penalty also. So, if the disciplinary authority is given the freedom to conduct a fresh enquiry and if, in the enquiry, penalty is imposed on the delinquent officer, that will amount to punishment of the delinquent officer more than once, for the same charges. This, at any rate, cannot be permitted. So, there is no reason why the request of the learned Counsel for the appellants for a fresh enquiry should be allowed.

9. In the result, the writ appeals are dismissed. No costs.


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