1. Petitioner these two writ petition is an Air Hostess employed in Indian Airlines Corporation. She would state that on 14th October 1982, as she fell sick, she could not report to duty, but sent a telegram to the Medical Doctor on 16th October 1982 regarding her continued illness. It was only on 16th March 1983, she was fit to report to duty and after securing a medical fitness certificate reported to duty on that date. As officials in the first respondent-Corporation were motivated, a charge-sheet dated 21st March 1983 was issued falsely claiming that she had absented from duty from 14th October 1982, to 15th March 1983 without prior intimation, and further claiming that three letters addressed to her have been returned unserved. She gave her explanation claiming that in spite of having changed her residential address which was to the knowledge of the Corporation and as every day the pick-up transport had come and taken her from the place where she was living, the three communications have been sent to her old address, and that she had sent an intimation to the duty officer on the day of her illness and followed it by telegram, which was not at all referred to in the imputations made as against her, and therefore, the charge-sheet is baseless in spite of an enquiry fixed to be held.
2. To prove that she sent a telegram, she got a communication from Post & Telegraph Department, which is to the effect that it was received by the Pharmacist on 17th October 1982, and when he was cross-examined he admitted having received it and sent it to the Doctor. Therefore, when they could not justify the charges framed against her, in order to harass her, a second charge-sheet was framed on 23rd November 1983, stating that she has misbehaved with the security guards on 2nd November 1983 and 14th November 1983 when she came to the Airlines House for participating in the enquiry, which was held on the first charge-sheet. She having been rudely dealt with by the security staff at the instance of motivated persons of the Corporation, on 14th November 1983 itself she had mentioned this to the Enquiry Officer and followed it up by a telegram dated 16th November 1983 of what had been done by security personnel and others. To this charge-sheet, she gave a reply on 12th December 1983, and in spite of it, on the second charge, the enquiry was to be conducted by the second respondent, and one R. Pushpavanam was to function as presenting officer.
3. As objected to on the earlier occasions, even though first respondent was represented by an officer, who is a legally trained person and herself unable to secure a friend as required under S.O. 32 of Standing Orders (Regulations) concerning Discipline and Appeals in Indian Airlines Corporation (hereinafter referred to as the Regulations), she sought permission for engaging a lawyer to defend herself. Mr. Pushpavanam is a law graduate and an experienced and legally trained person in conducting enquiries, and hence, principles of natural justice would be violated unless she is allowed to be defended by a lawyer. On this request being rejected by letter dated 13th January 1984, she preferred W.P. No. 595 of 1984, resting her claim on what has been held in Board of Trustees of the Port of Bombay v. D. R. Nadkarni and others 1983 I LLJ 1.
4. W.P. No. 5015 of 1985 is also preferred seeking for similar relief, but with reference to impugned communication dated 6th January 1985, on the plea that in respect of the third charge framed against her, she is again deprived of having a lawyer to defend her, when the presenting officer Mr. A. A. Samuel is an experienced person and legally trained to conduct domestic enquiries.
5. On 17th February 1985, first respondent framed the 3rd charge-sheet claiming therein that while in service as Air Hostess, petitioner had conducted a business, styled as 'Sai Pushpa Paradise', at No. 5/1, Kasi Chetty Lane, Madras, and it had been closed down on 1st July 1983, and it being contrary to the Regulations, she was called upon to send her representations. She sent a reply on 25th April 1985 calling for permission to engage an advocate in the enquiry to be held on 30th April 1985.
6. She was also placed under suspension on 6th March 1985, and not been paid any subsistence allowance, because first respondent had taken up the stand that consequent to the intimation received from Commercial Tax Officer, Madras-1 dated 28th December 1984 seeking for recovery under Section 26 of Tamil Nadu General Sales Tax Act, 1959, a sum of Rs. 2,92,926/- from the pay, allowance, gratuity and any amount due to her payable by the Corporation towards the arrears of sales-tax due to the Department, no amount could be paid to her.
7. On behalf of the respondent-Corporation, it is claimed that the charges framed against her are based on relevant materials and as for the first charge framed, she had been found guilty and a punishment of reduction in time scale by one stage without cumulative effect for one year, had already been imposed, and the presenting officer was only a law graduate, who was never enrolled at the Bar or practised as an Advocate and he is a full-time employee of the Corporation and petitioner having participated in the enquiry and competent authority having imposed the aforesaid punishment, nothing further survives for consideration. Her request for assistance of the lawyer had been denied under Standing Order No. 32 framed under Section 45 of Air Corporation Act, and nothing precluded her from availing of the services of co-employee.
8. As for the second charge, she had been informed of her right under S.O. 32 and her claim that she could not secure the services of anyone of 19,000 employees of the Corporation, of which nearly 3,600 are in Southern Region itself, cannot be believed. In all the enquiries held, co-employees having come and defended the deliquents, the allegation made that if any co-employee is to defend her such a person would be victimised is baseless and untrue.
9. Mr. Pushpavanam was not a legally trained person through a law graduate and being a full-time employee of the Corporation, the decision relied upon by her would have no application. Her request for change of venue and enquiry officer was turned down as there was no substance in her request.
10. Regarding the third charge framed against her, no motive could be attributed even in respect of this charge because the Corporation came to know about her involvement in a private business contrary to the Regulations only on receiving intimation from the Commercial Tax Officer, stating that she is in arrears of sale-tax to the tune of Rs. 2,92,926. The charges themselves would show that they are the outcome of what are found in the records of the Taxation Department, and on the basis of forms and returns submitted by her. As for Mr. Samuel, he is not a law graduate and not a legally trained person and had attended only one training on procedures for conducting domestic enquiry, and therefore, principles of natural justice are not violated in rejecting the request of the petitioner to engage a lawyer. The vague allegations of mala fides and motivation in relation to more than one charge framed in the proceedings are thoroughly baseless.
11. The foremost point is, whether the refusal to permit petitioner to engage an Advocate of her choice is illegal and unjust, and opposed to principles of natural justice
12. Mr. K. Chandru, learned Counsel for the petitioner, relies upon The Board of Trustees of the Port of Bombay v. D. R. Nadkarni and others (supra) to claim that, in spite of S.O. 32 of the Regulations, by taking into account the nature of charges framed, the complexity of the processing involved, the imbalance to be suffered by her in facing a disciplinary proceeding presented by an officer having legal equipment and experience in conducting domestic enquiries and it would deprive her of a fair and impartial disciplinary proceedings being conducted, in which she could prove the falsity of the charges, will have to be taken into account, instead of merely proceeding on the basis that there is no such provision found in the Standing Orders.
13. In The Board of Trustees of the Port of Bombay v. D. R. Nadkarni and others (supra), after the enquiry started, Regulation 12(8) came into force to the effect that an employee may take the assistance of any other employee to present the case on his behalf, but may not engage a legal practitioner unless the said presenting officer is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits. After referring to Brooke Bond India (Pvt.) Ltd. v. Subba Raman (S) and other 1961-II-LLJ-417, Dunlop Rubber Co. v. Workmen 1965-I-LLJ-426, C. L. Subramaniam v. Collector of Customs, Cochin 1972-I-LLJ-465 and A. K. Roy v. Union of India : 1982CriLJ340 , it was held that there being no inhibition in the Regulations precluding a lawyer being engaged by the delinquent employee, and taking note of an array of law officer engaged to conduct an enquiry as prosecutors and that there would be an imbalance in defending the case of the delinquent employee, to ensure fairness and justness in conduct of an enquiry, he was allowed to engage a legal practitioner. It was held that denial of such a reasonable opportunity to a delinquent employee would be a violation of one of the essential principles of natural justice viz., that a person against whom an enquiry is held must be afforded a reasonable opportunity to defend himself. Navin chandra Shakerchand Shah v. Ahmedabad Co-op. Department Stores 1979-I-LLJ-60 is also relied upon to show that, even if a delinquent is unaided and unhelpful, and the opportunity to defend is illusive, then principles of natural justice are violated.
14. A. K. Roy v. Union of India (supra) is for the proposition that, in spite of a specific prohibition found in Article 22(3)(b) of the Constitution of India denying a detenu to consult a legal practitioner or to be defended by him yet Article 14 would come into play, if the Advisory Board enabled the detaining authority to take the aid of a legal practitioner or a legal adviser. Hence it was held that the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
15. Mr. Chandru would submit that in spite of a constitutional prohibition as found in Article 22(3)(b), the equality of opportunity having been thus recognised, the presenting officers in both the enquiries are persons well-versed in conducting disciplinary proceedings and also legally trained and hence S.O. 32 would not deprive her of being defended by an Advocate.
Olga Tellis v. Bombay Municipal Corporation : AIR1986SC180 is touched upon to claim that, under Article 21, right to life includes right to the means of livelihood, and when petitioner is unable to get a co-employee to defend her job, reliance on S.O. 32 is done to prevent her from counter-acting the motivated charges framed against her, taking advantage of her inability to effectively participate in the enquiry. The other decisions relied upon are M. H. Hoskot v. State of Maharashtra : 1978CriLJ1678 and Ramana Dayaram Shetty v. International Airport Authority 1979-II-LLJ-217 to show that when likely consequences are more serious need for a lawyer is all the more necessary.
16. The right to be defended by a legal practitioner is not a fundamental right. It was held in A. K. Roy v. Union of India (supra), that 'denial of legal representation is not denial of nature justice per se, and therefore if a statute excludes that facility expressly, it would not be open to the Tribunal to allow'.
17. There is a specific exclusion made in S.O. 32 of any outside representation in any circumstance. In The Board of Trustees of the Post of Bombay v. D. Nadkarni and others (supra), the regulation enabled the delinquent to have a legal practitioner if the presenting officer appointed is a legal practitioner. In dealing with the scope of this regulation, in para 10 1983-I-LLJ-1, the following relevant portions deserve to be extracted for comprehending as to what extent this facility had been extended.
'...... Now if the rules prescribed for such an enquiry did not place an embargo on the right of 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 reasonable opportunity to defend himself should be permitted to appear through a legal practitioner .....
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 not an embargo was placed on such appearance. The rules were silent on this point .... In this enquiry the employer would be represented by two legally trained minds at the cost of the Port Trust while the first respondent was asked either to defend 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 we would consider this approach as utterly unfair and unjust. More so in the absence of rules, the Chairman of the appellant was not precluded from granting a request because the rules did not enact an inhibition ....'
18. Hence, if a rule has been enacted inhibiting participation of an outsider (legal practitioner), but at the same time extending an opportunity of being defended by a co-employee, then it cannot be said that there is a denial of principles of natural justice (sic) if what are contemplated occasion, when inquiries are held.
19. In Olga Tellis v. Bombay Municipal Corporation (supra) while dealing with the exclusion of principles of natural justice in Section 314(1) of Bombay Municipal Corporation Act, 1888, it was held by the Supreme Court that the said Saction was valid, because there is a presumption that the Legislature had intended to depart from rules of natural justice S.O. 32 does not contemplate deprivation of opportunity of being defended, and hence it cannot be claimed that it is in violation of anyone the essential principles of natural justice. As pointed out in A. K. Roy v. Union of India (supra), so long as a prohibition exists, and such a prohibition is valid, first respondent, which is a State within the meaning of Article 12 of the Constitution, cannot be told to act contrary to a valid Standing Order, unless Article 14 is contravened.
20. The other contention is that, in spite of a constitutional prohibition found in Article 22(3)(b), Supreme Court having held that Article 14 shall not be breached, when first respondent is engaging a legally trained person conversant with domestic enquires, it must also be extended such a facility (to petitioner). Standing Orders do not provide for a presenting officer to be appointed by Corporation and yet in both the matters, it had chosen to appoint presenting officers, who are trained in disciplinary proceedings with considerable legal background. In W.P. No. 595 of 1984, the presenting officer is Mr. R. Pushpavanam. Assistant Manager/Personnel Services. He is admittedly a law graduate and has acquired expertise in conducting disciplinary proceedings. In spite of being fully aware that there is no provision in Standing Orders for a presenting officer to be appointed, Corporation had chosen to enlist the services of a legally trained person, and therefore, in light of what is held in A. K. Rao v. Union of India (supra), in spite of a prohibition existing, once the authority chooses to take the aid of the legal practitioner or legal adviser or legally trained person to present its case to avoid breach of Article 14 of the Constitution, a similar facility should not be denied to the delinquent. It is apposite to extract the following sentences found therein to show that devices should not be adopted to bring about imbalance as between employer and the employee :
'... Regard must be had to the substance and not the form since, especially in matters like the proceedings of Advisory Boards, whomsoever assist or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 at not violated in any manner in the proceedings before them ....'
This directive was given in spite of the prohibition found in Article 22(3)(b). Therefore, realising that by retention of Mr. Pushpavanam any longer, petitioner would succeed in securing the assistance of an Advocate, an affidavit dated 12th November 1984 is filed stating that a decision had since been taken to change the presenting officer and that one Mr. K. Sampathkumar, Assistant Manager/Personnel Services, is appointed in the place of Mr. Pushpavanam, and that he being not a law graduate, the basis on which the writ petitioner demanded the assistance of a legal practitioner no longer exists. It shows that Corporation is bent upon to deprive her of being effectively defended in spite of herself more than once repeating that she was unable to secure a friend in the Corporation.
21. As for Mr. Sampathkumar, he has secured a diploma from Madras School of Social Work and it is one recognised under Factories Act. It is stated that this diploma course has since been recognised as leading to M.A. Degree, and that after rule 4(b) of the Rules framed under the Factories Act, such a person is qualified to be appointed as Welfare Officer and during the study of diploma course, laws are taught, and hence, he has acquired a legal equipment, which would enable him to have a distinct advantages over that of the petitioner, who is unable to secure the assistance of anyone of the employees in the Corporation. He has already acted as a presenting officer in one case and conducted one enquiry.
22. As for Mr. A. A. Samuel, who is concerned with the third set of charges framed and which are involved in W.P. No. 5015 of 1985, he has conducted 20 enquires and acted as presenting officer in ten cases and he is a B.Sc., M.B.A., and has studied in Xavier Labour Relations Institute, Jamshedpur. He had attended a training programme of Fundamentals of conducting Departmental. Enquiries in 1981. In spite of change of presenting officer in W.P. No. 595 of 1984, the situation put as against the petitioner, is not in any manner changed. She has to face more than one disciplinary proceedings. In spite of herself pointing out that the Corporation had falsely claimed that it had not received her telegrams dated 16th October 1982, she had been found guilty. This is indicative of how far she is handicapped in defending herself in disciplinary proceedings. S.O. 32 is of no assistance to her because she is unable to get the assistance of a co-employee to defended herself. To this, the Corporation pleads that there are 19,000 employees in its roll, of which nearly 4,000 are in Southern Region. That would not mean that all of them are her friends. In times of distress, in the whole world not a single friend could be secured; this is not uncommon. To get friend or a colleague to assist may not be a problem, when a person has status, position, financially sound or affluence and the like, but when these are lost, it is the friend who becomes scarce. It is then stated that she had not furnished the names of persons whom she had approached, but refused to help her. She had already stated that none had come forward to help her, because they will have to face harassment from officials of the Corporation. If she is to disclose their names what they want to avoid they would suffer. Ability to secure an effective and equally placed friend, to match the expertise relied upon by the Corporation to put forth its indictments through a well trained person, is not easily achievable, even if some friends exits. Corporation would not state that its choice of presenting officer is not based on capabilities and that persons unacquainted with what they are to do are being put on the job. To expect a likewise choice to be made by a delinquent from among her friends may not be easy. A friend in S.O. 32 is not the usual friend available, but a friend to match presenting officers of Corporation. She will certainly have atleast a few friends the formal type to chat with, to go out, to dress alike or who allows to be confided with etc. The inability she pleads is of the type of friends which S.O. 32 contemplates and when it is not achievable, Article 14 of the Constitution comes into play, as pointed out A. K. Roy v. Union of India (supra). Such of those delinquents who are able to secure a friend to match the presenting officer would certainly avail/and are availing themselves of S.O. 32. But in a given case, if a delinquent has no friends in the Corporation as will happen to a newly recruited person or is unable to secure a person who would be a match to the presenting offer, then the relief claimed cannot be denied. At this juncture, it will be worth remembering that, in spite of there being no provision in the Standing Orders for having a presenting officer, it is the Corporation which has chosen to appoint such presenting officers in its interests, treating the Standing Orders as if they are directory in nature. If it thinks that it could go outside the Standing Orders and bring about an imbalance in the disciplinary proceedings, then Article 14 holds the field.
23. Mr. K. Chandru, learned Counsel for the petitioner, refers to the following decisions to show that fair play should be the hallmark for statutory corporations and that a legal practitioner helps and aids in enforcing rule of law, etc.
Dr. Subba Rao v. State of Hyderabad AIR 1957 AP 414
Ramesh Chandra Verma v. R. D. Verma : AIR1958All532
Nripendra Nath Bagshi v. Chief Secretary : (1961)IILLJ312Cal (DB)
Nitya Ranjan Bohidar v. The State : AIR1962Ori78 (DB)
Muniswamy v. State of Mysore AIR 1964 Mys P. 250
C. L. Subramaniam v. Collector of Customs 1972-I-LLJ-465
N. H. Hoskot v. State of Maharashtra : 1978CriLJ1678
K. C. Mary v. Kavitha Movie House 1979-I-LLJ-10
Unreported judgment of this Court in W.P. Nos. 3367 and 3363 of 1977 dated 29th July 1980.
In the light of conclusions above arrived at, they are not dealt with in extenso as part of this order.
24. Learned Counsel for the petitioner also dealt with the attachment order received from Commercial Tax Department and the failure to pay subsistence allowance. As the order of attachment received by Corporation had not been challenged or assailed as unenforceable, and as these aspects do not form part of these writ petitions, remedies, if any, available to petitioner will have to be worked out in appropriate proceedings, and hence those contentions are not dealt with in this order.
25. Hence, these writ petitions are allowed with costs. Counsel fees Rs. 500/- in each writ petition.