IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WA.No. 499 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.4624/2009 Dated 13/02/2009 .................... APPELLANT/ PETITIONER ------------------ P. GANESAN, NO.882294559 CT/GD, A COY , CISF UNIT, COCHIN PORT TRUST, COCHIN. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.VISHNU S,CHEMPAZHANTHIYIL RESPONDENTS/ RESPONDENTS ----------------------- 1. THE DIRECTOR GENERAL, CISF HEAD QUARTERS, CGO COMPLEX, LODHI ROAD, NEW DELHI. 2. THE INSPECTOR GENERAL, CISF HEAD QUARTERS, SOUTHERN SECTOR, CHENNAI. 3. THE COMMANDANT, CISF UNIT, COCHIN PORT TRUST, COCHIN. 4. THE ENQUIRY OFFICER/ DEPUTY COMMANDANT, SHRI.V.G. MARKAM, CISF UNIT, COCHIN PORT TRUST, COCHIN. 5. UNION OF INDIA, REPRESENTED BY ITS SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 TO 5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. -------------------------------- W.A. No. 499 OF 2009 -------------------------------- Dated this the 23rd day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the appellant. He is a Constable under the CISF Unit, Cochin Port Trust, Cochin. He is facing disciplinary proceedings. He is entitled to get assistance, in the Disciplinary Enquiry, of a member of the force to defend him. But, the relevant Rule says that he can take the assistance only of a member of the Force posted at the place of enquiry. Nobody in Cochin is willing to help him. If he does not get the assistance of an employee, he will be prejudiced in the enquiry. So, challenging the rule, which prohibits engaging Defence Assistant from outside the place of the enquiry, the writ petition was filed. Other incidental reliefs were also sought. But, the writ petition was dismissed by the learned Single Judge. Hence, this appeal. W.A. No.499/2009 2 2. The relevant rule, which is under challenge, reads as follows: “36 (8) (a). The enrolled member of the Force so charged may be permitted by the inquiring authority to present his case with the assistance of any other member of the Force posted at the place of inquiry. He will give three choices for his defence assistance and the controlling officer will depute any one of three indicated by him”. 3. During the hearing of this appeal, as suggested by this Court, the respondents have found out five persons, who are willing to assist the appellant. The appellant may elect one of them to defend him in the enquiry, it is submitted. 4. Challenge against the Rule at this stage is premature. If, ultimately, the appellant is punished and the departmental remedies do not yield any results and he has to approach this Court, then only, he requires to challenge the Rule, which stood in the way of his properly defending himself in the enquiry. W.A. No.499/2009 3 5. In view of the above position, the learned counsel for the appellant submitted that his prayer against the validity of the Rule may be permitted to be withdrawn, so that, it will remain open, and if, necessary, he can urge it in future proceedings. The said prayer is allowed. Anything said by the learned Single Judge on the merits of the contention of the appellant against the validity of the Rule will not stand in his way, if he had occasion to challenge it in future. In view of the submission of the list of persons willing to assist the appellant by the respondents and the willingness of the appellant to choose one of them to defend him, the appeal is closed. The above direction will not stand in the way of the appellant in finding by himself any Defence Assistant of his choice. But, the same he shall do within three days from today. Otherwise, he may elect anyone from the panel submitted by the respondents. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps