IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.11.2008 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.27012 of 2008 & M.P.Nos.1 & 2 of 2008 V.Ananthasekar ...Petitioner vs 1. The Government of Tamil Nadu, rep. by the Secretary to Government, Home(Police XVII) Department, Secretariat, Chennai-600 009. 2. Karan Singh, I.P.S., Inspector General of Police, Central Zone, Tiruchirappali. ...Respondents Writ Petition filed Under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus to call for the records relating to the orders in (1) C.No. of 48-13 Camp/IGP/CZ/2008 dated 9.11.2008 of the second respondent (2) letter No.90780/Police-17/2008-1, Home (Police XVII) Department dated 20.10.2008 of the first respondent (3) Na.Ka.No.48-Camp-2008 dated 28.05.2008 of the second respondent, quash the same and direct the first respondent to appoint a fresh enquiry officer with Head Quarters at Chennai by replacing the second respondent to furnish copies of all relevant documents mentioned in the charge memo as sought for by the petitioner to have the enquiry conducted at Chennai by affording opportunity to the petitioner to examine and cross examine all the witnesses examined so far in his absence and by permitting him to engage a lawyer, within a limited time frame. For Petitioner : Mr.M.Ravi For Respondents : Mrs.Lita Srinivasan, Government Advocate O R D E R This writ petition is directed against the orders of the second respondent dated 9.11.2008 & 28.05.2008 and the first respondent dated 20.10.2008. https://hcservices.ecourts.gov.in/hcservices/ 2. The order of the second respondent, dated 9.11.2008, which is impugned in the present writ petition, relates to dispensing with the prosecution witnesses and prosecution documents in respect of the disciplinary proceedings initiated and pending against the petitioner based on the charge memo, dated 11.10.2007. In the said order, the second respondent has dispensed with two of the prosecution witnesses by stating that one witness had been dismissed from service and another's whereabouts are not known. So far as prosecution documents are concerned, Document Nos.9, 11 and 21 are dispensed with for the reason that the witness concerned with Document No.9 turned hostile; that the person related to Document No.11 has involved in a criminal case and dismissed from service and in respect of the other person, who is related to Document No.21, has resigned and his whereabouts are not known. 3. In the order of the first respondent-Government dated 20.10.2008, the Government has rejected the request of the petitioner to have the change of the Enquiry Officer, who has been transferred outside the Chennai, and also to continue to have the enquiry at Chennai. 4. In the order of the second respondent dated 28.05.2008, the request made by the petitioner, as per his representation dated 28.05.2008 to have the assistance of a lawyer in the disciplinary proceedings, came to be rejected on the ground that the Vigilance Officer, who has presented the case, is not having law qualification. 5. In respect of the charge framed against the petitioner, dated 11.10.2007, alleging that the petitioner, who is under suspension, during his tenure as Director (Course), Fire and Rescue Services Department, State Training Centre, Tambaram, Chennai, in the cadre of Deputy Director during the period from 03.07.2006 to 30.09.2006, actuated by the corrupt motive and by abusing his official position, obtained pecuniary advantage to the tune of Rs.5,08,365/- in the collection of Mess Bill from cadets, Rs.36,800/- for granting leave to the cadets and Rs.1,84,000/- for awarding pass marks to the cadets. On such basis, the petitioner has failed to maintain absolute integrity and devotion to duty in Government Service and behaved himself in a manner unbecoming of a Government Servant by violating Rule 20 of Tamil Nadu Government Servant's Conduct Rules, 1973. The abovesaid charge has been levelled against the petitioner and in the list of documents annexed to the charge memo, 53 documents have been cited, while 65 witnesses have been referred to in the charge. 6. It is submitted by the learned Government Advocate, on instructions, that out of 65 witnesses, 59 witnesses have been examined by the Enquiry Officer. https://hcservices.ecourts.gov.in/hcservices/ 7. It is stated by the learned counsel for the petitioner that some of the witnesses have been not cross-examined and, when the matter is pending, the Enquiry Officer, viz., the second respondent, was transferred outside the Chennai and, inspite of the same, the second respondent had insisted the petitioner to appear for the enquiry in the place where he is presently posted viz., Trichirapalli. When the petitioner had made a request stating that it is not possible for him to go to Trichirapalli for the purpose of not only to cross-examine some of the witnesses but also to bring the defence witnesses, while he was under suspension, his request was rejected by the first respondent-Government. The contention of the learned counsel for the petitioner in this aspect is that when many number of witnesses are to be examined and the petitioner has got his own right to bring the defence witnesses on his side, who are all from Chennai, by compelling the petitioner to go to Tiruchirapalli from Chennai would not only create great hardship to him but also to the defence witnesess, who have to be produced before the Enquiry Officer in the disciplinary proceedings. 8. There is certainly some force in the contention of the learned counsel for the petitioner in this regard. It is now well settled that the principles of natural justice form part of the right to life as enunciated under Article 21 of the Constitution. Even though it may not be a procedure established by law, as contemplated under Article 21 of the Constitution of India, in such legal parlance, in my considered view, it is not proper for the respondents to direct the petitioner to go out of Chennai for defending himself. The defence of the delinquent officer is certainly an important event for him not only to prove himself to be innocent but also to defend the charges levelled against him in the disciplinary proceedings in a manner known to law. It is also seen that out of 65 witnesses on the side of the prosecution, 59 witnesses have been examined and some of them are yet to be cross- examined by the petitioner. In the midst of such pendency of the proceeding, it is not proper for the first respondent-Government to reject the claim of the petitioner in having any other Enquiry Officer posted at Chennai. 9. Learned counsel for the respondent would rely upon the letter sent by the Principal Secretary to the Government, wherein the Secretary has stated that the Government has decided to appoint Dr.K.R.Shyam Sunder, IPS., Director, Fire and Rescue Services, Chennai as Enquiry officer to enquire into the charges framed in the disciplinary proceedings pending against the petitioner instead of the second respondent, who has been transferred. 10. In such view of the matter, as the Government itself has taken a decision to have an Enquiry officer changed, there is no difficulty to come to a conclusion that the order of the first https://hcservices.ecourts.gov.in/hcservices/ respondent dated 20.10.2008, which is also impugned in the writ petition, has to go. In view of the above, the order of the first respondent dated 20.10.2008 is set aside with a direction to the first respondent-Government to appoint any other Officer of its choice including Dr. K.P.Shyam Sunder IPS., as suggested by the Government, so as to enable the Enquiry Officer to continue the disciplinary proceedings left by the second respondent. 11. As far as the order of the second respondent dated 09.11.2008, dispensing with the prosecution witnesses is concerned, I do not see any infirmity in the order passed by the second respondent, especially in the circumstance that the reason given for dispensing with such prosecution witnesses are that one of them was dismissed from service later and another had resigned and his whereabouts are not known. If that is true and the respondents have decided not to rely upon those prosecution witnesses, there is no hindrance on the part of the petitioner at all. I do not find any valid reason to question the validity of the said order. Therefore, the impugned order of the second respondent dated 9.11.2008, dispensing with the prosecution witnesses on various reasons enumerated above, does not suffer from any illegality or irregularity and the same is held valid. 12. The last point that has to be decided in this writ petition is about the petitioner to have the assistance of a lawyer during the course of the disciplinary proceedings. It is not in dispute that disciplinary proceedings has commenced much earlier and 59 witnesses have been examined. Except in the letter dated 28.05.2008, which was for the first time, it appears that the petitioner has not made any request for availing the assistance of a lawyer. 13. Mr.Ravi, learned counsel appearing for the petitioner would place strong reliance upon some of the chapters in the Hand Book on the Disciplinary Procedures, published by the Government of Tamil Nadu. The Hand Book no doubt consists of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which are framed under Article 311 of the Constitution of India. But the remaining parts, which are contained in the Hand Book on Disciplinary Procedures are executive instructions. In Part IV of the said Hand Book on Disciplinary Procedures, Chapter IX Miscellaneous Clause II speaks about the appearance of lawyers in Departmental Inquiries, which reads as follows: "A Government servant proceeded against has no right to be represented or assisted by a lawyer in departmental inquiry. The Heads of departments and other Inquiring Authorities have been vested with the discretion to allow the Government servant to engage a lawyer in defending himself in the departmental https://hcservices.ecourts.gov.in/hcservices/ proceedings, where they are of the view that denial of such opportunity will greatly prejudice him. When the principles of natural justice required that the person charged and proceeded against departmentally should have the assistance of a lawyer, a lawyer can be allowed to represent a Government servant, as for example: (i) when the person charged has a substantial allegation of bias against the Inquiry officer, or (ii) when the person charged challenges the opinion of a Medical Board, i.e. when a technical point is involved. It is in discretion of the inquiring Officer to accept or reject the prayer of a Government servant for his representation through a lawyer in departmental proceedings. Refusal to afford a "reasonable opportunity" to take such legal advice, when viewed in the light of other circumstances of the case may legitimately lead to the inference that he was not given a reasonable opportunity to defend himself. However, in departmental inquiries taken on the report of the Director of Vigilance and Anti- corruption, the Vigilance Officer who has investigated the case has a right to be present there to assist the Inquiring Officer, and the presence of the Vigilance Officer will militate against the Accused Officer. Hence, in such cases, the request of the accused officer for engaging a lawyer should not be rejected." 14. A reading of the aforesaid clause makes it clear that it is the discretion which is vested with the heads of departments or other Inquiring Authorities to allow the Government servants to engage a lawyer for defending in the departmental proceedings. However, it is made clear that the assistance of the lawyer is not permissible to the Government servants at the time of departmental enquiry and it is only in exceptional cases the discretion is vested with the Heads of Departments. The further wordings in the said clause only enables the Enquiry officer to decide the requirement of the lawyer in conformity with the principles of natural justice. It further stated in cases where the departmental enquiries taken on the report of the Director of Vigilance and anti-corruption, the Vigilance Officer, who has investigated the case, has a right to be present to assist the Enquiry officer, the presence of such Vigilance Office will militate against the Accused Officer and, in such circumstances, it is stated that the request of the Accused Officer for engaging a lawyer should not be rejected. https://hcservices.ecourts.gov.in/hcservices/ 15. In the present case, on facts, it is not in dispute that the departmental proceedings have been initiated as per the report of the Director of Vigilance and Anti Corruption and it is not the case of the respondents that the Vigilance Officer, who has investigated the case, is not present during the course of enquiry. When this is the factual position, as per the clause extracted above, the request of the petitioner to have the assistance of his lawyer should not have been rejected. 16. On the other hand, while dealing with such request of the petitioner, dated 28.05.2008, to have the assistance of the lawyer, the second respondent-Enquiry Officer has stated that the Vigilance Officer, who is present in the case is not a person qualified in law and, therefore, the claim of the petitioner to have a lawyer's assistance came to be rejected. It is true that in the said impugned order, the second respondent-Enquiry officer has informed the petitioner that, if necessary, and, if the petitioner wants, he can engage a lawyer after enquiry is completed in order to assist the petitioner in explaining the legal position in the enquiry. 17. A reading to the said Chapter IX of the Hand Book on Disciplinary Procedures, does not impose such condition that, unless the Vigilance Officer is qualified in law, the request of the accused officer for assistance of lawyer should be rejected. On the other hand, it is clearly stated that when the proceedings is initiated by the Director of Vigilance and Anti Corruption, the delinquent can avail the assistance of a lawyer. It is for the Enquiry officer to decide on the factual circumstance, since he has to proceed with the enquiry as per the instruction by the Government against the accused officer. In such view of the matter, by applying the said Hand Book on Disciplinary Procedures, it is the duty on the part of the respondent to act as per the instructions. Even though normally the request of the accused for the assistance of a lawyer is within the discretionary power of the enquiry officer, it cannot be interfered with unless such discretion has been exercised in an improper manner. On the factual existence of the clause in the Hand Book on Disciplinary Procedures, it is the duty of the respondent to follow the same and a lawyer to be engaged if the Vigilance Officer, who has investigated the case, has been present through out the enquiry. 18. In view of the above said findings, the impugned order of the second respondent dated 28.05.2008 stands set aside with a direction that the Enquiry officer to be newly appointed shall continue the proceedings and, by keeping in view the instructions found in the Hand Book of Disciplinary Procedure and the observations made above, he shall take a decision afresh as and when the petitioner makes such application of assistance of a lawyer. https://hcservices.ecourts.gov.in/hcservices/ 19. It is also relevant to point out that the Government in G.O.Rt.No.2597 Home (Police-XVII) Department dated 04.12.2007 has appointed an Enquiry officer and directed him to conduct the enquiry by following the prescribed procedure under rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules and in the Hand Book on Disciplinary Procedures and furnish report to the Government within three months. The G.O. reads as follows: Home (Police-XVII) Department G.O.Rt.No.2597 Dated 4.12.2007 Read;- (1) Government letter No.57818/Pol.17/2007-4 dated 11.10.2007. (2) From Thiru V.Ananthasekar, Director (course), (u/s), State Training Centre, Tambaram, Chennai written statement of defence, dated 30.10.2007. (3)G.O.Rt.No.2499, Home(Police-17) Department, dated 21.11.2007. (4) From the Director, Fire and Rescue Services, Chennai D.O. letter No.18/Camp.Dfrs/20006, dated 23.11.2007. ORDER: In the circumstances reported by the Director, Fire and Rescue Services, in the letter fourth read above and in supercession of the orders issued in the Government order third read above, the Government appoint Thiru Karan Singha, IPS., Inspector General of Police (Crime), Special Investigation Team, as Enquiry Officer to hold an enquiry into the charges framed against Thiru V.Ananthasekar, Director (Course), now under suspension, State Training Centre, Fire and Rescue Services, Tambaram by the Government in the reference first cited. 2) The Government also direct the enquiry officer to conduct the enquiry by following the prescribed procedure under rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules and in the Hand Book on disciplinary procedures and furnish his report to Government within 3 months. (BY ORDER OF THE GOVERNOR)" https://hcservices.ecourts.gov.in/hcservices/ 20. In view of the above the writ petition is disposed of as follows: (i) The impugned order of the first respondent dated 20.10.2008 rejecting the change of Enquiry Officer is set aside with a direction to the first respondent to appoint fresh enquiry officer either Thiru K.R.Shyam Sundar, IPS or any other officers so as to enable such enquiry officer to continue the said enquiry commenced by the second respondent based on the charge memo dated 11.10.2007; (ii) The order of the second respondent dated 28.05.2008, rejecting the claim of the petitioner for having assistance of the lawyer in the disciplinary proceedings, is set aside with a direction to the Enquiry Officer to be appointed by the Government to consider such request, if a request is made by the petitioner for assistance of lawyer, in the context of the Hand Book on Disciplinary Procedures Chapter IX especially with reference to Clause II as enumerated above; (iii) The order of the second respondent dated 09.11.2008 in dispensing with some of the witnesses and documents are held to be not bad in law; (iv) The Enquiry officer to be appointed by the Government shall continue with the further proceedings allowing the petitioner to cross examine those prosecution witnesses who were already examined in chief but not cross examined and also permit the petitioner to cross examine other witnesses on the side of the prosecution and examine the defence witness and also allow the petitioner to produce various documents. (v) It is needless to state while effecting such enquiry, the Enquiry officer shall consider the claim of the petitioner for the purpose of production of some of the documents, which are relevant for the purpose of deciding the issue and furnish the same if the decision to that effect is arrived at by the Enquiry officer. It is made clear that the Enquiry shall be continued by the Enquiry officer as it was commenced earlier and the petitioner shall co-operate with the Enquiry officer through out the enquiry proceedings. The enquiry shall be completed by the Enquiry officer as expeditiously as possible after giving opportunity to the petitioner within a period of 12 weeks from the date of receipt of https://hcservices.ecourts.gov.in/hcservices/ a copy of this order. No costs. Consequently, M.P.Nos.1 and 2 of 2008 are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar raa To The Secretary to Government, Government of Tamil Nadu, Home(Police XVII) Department, Secretariat, Chennai-600 009. + 1 c.c. to Mr. M. Ravi, Advocate. S.R.No.64440. + 1 c.c. to The Government Pleader. S.R.No.64598. W.P.No.27012 of 2008 SV (CO) GSK 02.12.2008. https://hcservices.ecourts.gov.in/hcservices/