IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.04.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.7486 of 2010 and M.P.Nos.1 and 2 of 2010 A.Annadurai Prakasam ... Petitioner Vs 1.The Superintendent of Police, Coimbatore District, Coimbatore – 641 018. 2.The Deputy Superintendent of Police, Pollachi Division, Pollachi, Coimbatore District. ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records of the 2nd respondent in proceeding No.(NIL) dt 10.3.2010 and quash the same in so far it imposes restrictions on the Counsel for the petitioner for cross examining the witnesses and consequently direct the 2nd respondent to permit the Counsel engaged by the petitioner to cross examine the witnesses during the enquiry proceedings. For Petitioner : Mr.T.Gowthaman For Respondent : Mr.R.Murali,G.A. O R D E R The petitioner was employed as constable in the Armed Reserve (III) Platoon at Coimbatore. He was declared as a deserter. He has come forward to challenge the order of the second respondent dated 10.03.2010. 2. By the impugned order, the Deputy Superintendent of Police, Pollachi, who was appointed as Enquiry Officer permitted the petitioner to engage an Advocate at his own expenses. He observed that there were no complicated questions involved and therefore, there was no necessity to involve any outsider in the enquiry. It was also stated that during the oral enquiry, he can have the assistance of an Advocate and get advise from the said Advocate, but he will not be permitted to cross examine the witnesses. The petitioner was directed to inform the name and address of the Advocate. The petitioner has come forward to challenge the said communication. https://hcservices.ecourts.gov.in/hcservices/ 3. It was contended that since the charge levelled against the petitioner was grave, he should be provided with the assistance of an Advocate. The Tamil Nadu Police Sub-ordinate Services (D & A) Rules 1955 does not bar the Enquiry Officer in permitting the assistance of an Advocate. 4. When the matter came up for hearing on 13.04.2010, this Court directed the learned Government Advocate to take notice and get instructions from the respondents. Though the matter came up today, the learned Government Advocate is unable to get written instructions from the respondents. 5. Therefore, considering the scope of the prayer made by the petitioner, this Court decided to dispose of the writ petition. Any further entertainment of the writ petition and grant of stay of the domestic enquiry proceedings to examine the issue raised herein will cause unnecessary delay in the proceedings initiated against the petitioner. 6. There is no quarrel with the well known proposition of law that as a matter of right, a Government servant cannot have the assistance of a lawyer. Since it is within the discretion of the second respondent who is appointed as Enquiry Officer to permit the counsel to assist the petitioner and that discretion already been exercised, the only question is having permitted the Advocate to appear, whether he can be asked to merely sit in the enquiry as an observer. This Court is at a loss to know after having permitted a lawyer as to how any restriction can be made about the role of the lawyer. In fact, the very purpose of utilising the assistance of a lawyer is to effectively defend the charged officer in the enquiry. 7. Therefore, in the present case, the issue is not whether the petitioner is entitled to have the assistance of a lawyer or not. On the contrary, having permitted the assistance of a lawyer, whether the lawyer should be kept idle in the course of the proceedings. A Division Bench of the Gujarat High Court vide its judgment in Navinchandra Shakerchand Shah v. Ahmedabad Co-operative Department Stores Ltd reported in 1979 1 LLJ 60, in paragraph 18 held as follows: "18. ... The inquiry has to be in accordance with the principles of natural justice. In such a situation apart from technicality whether permission is asked for or having not been asked for, a time has come to expect the employer or his nominee to inform the employee of his rights. If thereafter the employee does not avail of the opportunity, no grievance could be made. And here the petitioner as required by cl.(4) had a right to cross-examine witnesses. Sitting in law Courts day in and day out we know what the art of cross-examination is and few have mastery over it. Do we expect this petitioner to cross examine witnesses on his own, https://hcservices.ecourts.gov.in/hcservices/ unaided and unhelped by anyone? We are aware of the fact that another workman of his department would have hardly improved the matter, but two together could have put up some show of cross-examination and Udesing could have been cross-examined. If a party is required to showcause and has a right to cross-examine witnesses, such a right would be illusory if it is required to be exercised by lay persons Vide B.E.Supply Co. v. The Workmen, (supra)..." 8. The above observation will clearly show that a Government Servant may not have the expertise to cross-examine the witness. Even a trained legal counsel will have difficulty in cross- examining the witness. Therefore, the presence of the legal counsel cannot be an idle spectator. But it must have some nexus with the discretion exercised by the respondent. Once a legal counsel is allowed to appear on behalf of a charged officer, he is entitled to exercise the power as a lawyer and effectively defend his client in the enquiry. 9. This court in similar circumstances permitted the Advocate, who was allowed to be engaged in the domestic enquiry but also to cross examine the witness and not sit as mere spectator in the enquiry as an advisor behind the screen. If an effective assistance of an Advocate is required, he must also be allowed to cross examine the witness, without which no useful purpose will be served in permitting a counsel. 10. In the light of the above, the impugned order in so far as it refuses the engaged lawyer to cross examine the witness is hereby set aside. If any Advocate is engaged by the petitioner, he is also entitled to cross-examine the witness and to render effective service to the petitioner. The writ petition stands allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar svki To 1.The Superintendent of Police, Coimbatore District, Coimbatore – 641 018. https://hcservices.ecourts.gov.in/hcservices/ 2.The Deputy Superintendent of Police, Pollachi Division, Pollachi, Coimbatore District. 1 cc to Government Pleader, Sr.No.26571 1 cc to Mr.T.Gowthaman, Advocate, Sr.No.26268 W.P.No.7486 of 2010 SSK {CO} TP/22.4.2010. https://hcservices.ecourts.gov.in/hcservices/