1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.10.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD).No.10219 of 2011 and M.P.(MD)No.1 of 2011 Rajendran : Petitioner Vs. The Deputy Superintendent of Police, Alangudi, Pudukkottai District. : Respondent PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records pertaining to the proceedings of the respondent dated 02.09.2011 with respect to Tha.Pa.No.05/2011 on the file of the respondent and quash the same as illegal, arbitrary and violative of principles of natural justice insofar as it refuses the engaged lawyer to cross examine the witnesses in departmental proceedings. For Petitioner : M/s.K.Baalasundharam For Respondent : Mr.TR.Janarthanan Additional Government Pleader ORDER This writ petition has been filed by Rajendran, Head Constable, challenging the impugned proceedings dated 02.09.2011 passed by the Deputy Superintendent of Police, Alangudi, Pudukkottai District with respect to Tha.Pa.No.05/2011 by which the petitioner was informed that permission given to engage lawyer was only to peruse the documents and not to cross-examine the departmental witness. 2. Mr.K.Baalasundharam, learned Counsel appearing for the petitioner submits that once the respondent has issued show-cause notice consisting of two charges against the petitioner and proceeded with an enquiry by allowing the petitioner's counsel to peruse the documents, it is not open to the respondent not to cross-examine the witnesses produced by the department side. The said issue has been covered by a decision of this Court in S.Selvam v. Deputy Inspector General of Police, Salem Range, Salem and Another reported in (2010) 1 MLJ 427, wherein it has been held that once legal counsel is https://hcservices.ecourts.gov.in/hcservices/ 2 allowed to appear on behalf of a charged officer, he is entitled to exercise power as a lawyer and effectively defend his client in enquiry. On this basis, he prayed for quashing the impugned proceedings dated 02.09.2011 whereupon the respondent has refused permission to the petitioner's lawyer to cross-examine the witnesses produced by the department side. 3. The learned Additional Government Pleader appearing for the respondent has no quarrel on the proposition decided in the above said judgment. Therefore, it is an admitted case that when the petitioner was issued with a show-cause notice and the petitioner also has given his explanation denying all the charges, the Disciplinary Authority after disagreeing with the explanation offered by the petitioner, appointed an Enquiry Officer. When the Enquiry Officer was appointed to enquire into the matter, the petitioner sought for permission to engage a lawyer to assist him in the enquiry proceedings, the respondent has also permitted the petitioner to have the assistance of lawyer only for the limited purpose of perusing the documents. But, having permitted the petitioner to have the assistance of lawyer, it is not open to the respondent to restrict the said privilege only for the purpose of perusing the documents. As rightly held in the above said judgment, once a legal counsel is allowed to appear on behalf of a charged officer, he is entitled to exercise power as a lawyer and effectively defend his client in enquiry by doing both the chief examination and cross-examining the witnesses. As the respondents refused the petitioner's counsel to do so, the impugned proceedings, dated 02.09.2011, issued by the respondent is liable to be quashed. In this context, it is relevant to extract paragraph 5 of the above mentioned judgment, which reads as follows: "5.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. But in the present circumstances, it is not a question of the request of the petitioner being denied by the respondents. On the contrary, the petitioner was permitted to have a lawyer present during the department enquiry. But, he has been asked not to cross examine the witness. 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." 4. The above observation is squarely applicable to the present case on hand, because, the respondent having allowed the petitioner's counsel to peruse the documents in the enquiry, they cannot keep him as an idle spectator, because once the legal counsel is allowed to appear on behalf of a charged officer, he is entitled to exercise his duty as a lawyer and effectively defend his client in the said https://hcservices.ecourts.gov.in/hcservices/ 3 enquiry from chief examination, cross-examination and till the arguments is advanced. In that view of the matter, the impugned order is quashed. Consequently, the respondent is directed to permit the petitioner's counsel to cross-examine and complete the said cross- examination in the enquiry and thereafter, it is open to the respondent to proceed with the matter in accordance with law. With the above directions, this writ petition is disposed of. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To The Deputy Superintendent of Police, Alangudi, Pudukkottai District. +1 CC to Mr.T.R.Janarthanan, Advocate (SR.No.35267) +1 CC to Mr.K.Baalasundharam, Advocate (SR.No.35517) W.P.(MD).No.10219 of 2011 and M.P.(MD)No.1 of 2011 11.10.2011 srm NSV/3.11.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/