REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 07, 2010 Punjab State and another .....Appellants VERSUS Kulwant Singh ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Ambika Luthra, AAG, Punjab, for the appellant. None for the respondent. **** RANJIT SINGH, J. Under challenge in this case is the order passed by the Additional District Judge, Amritsar, who has allowed the appeal of respondent-plaintiff Kulwant Singh and had decreed his suit setting- aside the order of his termination passed on 19.5.1981. While serving as Conductor in Patti Depot, respondent- plaintiff was charge sheeted on 26.2.1981 with the allegation that he had charged fare from six passengers travelling in the bus on 22.2.1981 on route Amritsar to Ludhiana. Respondent-plaintiff had REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 2 }: allegedly not issued tickets to these passengers and, thus, was accused of embezzling a sum of Rs.14/-. Respondent-plaintiff had denied the allegation made against him and, thus, Enquiry Officer was detailed to hold the enquiry. As per the allegation, the enquiry was held with a prejudiced mind, where respondent-plaintiff was not given adequate and a fair chance to put forth his case. The plea is that he was not given the assistance of a co-employee as required under Rule 8 of Punjab Civil Services (Punishment and Appeal) Rules, 1970. He had accordingly filed the suit to impugn the order of dismissal, which was said to be tainted and illegal. The appellant controverted the contention raised by the respondent-plaintiff. In the reply filed, it was stated that enquiry was properly held and the punishment was imposed, which was perfectly legal and justified. The Trial Court framed the following issues:- 1. Whether the impugned order dated 19.5.1981 is illegal, ultravires, wrong etc. as alleged in the plaint? OPP 2. Whether the civil court has got no jurisdiction to try the suit? OPD 3. Relief. The suit filed by the respondent-plaintiff was dismissed, against which he filed an appeal, which was allowed. The State has, thus, filed the present Regular Second Appeal. The first Appellate Court accepted the submissions made on behalf of the respondent-plaintiff that he was never made aware of the beneficial provisions as incorporated in Rule 8 of the Appeal Rules and, thus, he was deprived of having the benefit of being REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 3 }: assisted by the co-employee during the course of enquiry. In fact, on this very precise ground the same Appellate Court has allowed the case of another Constable, which was under challenge before this Court in Regular Second Appeal No.1228 of 1987 (The Punjab State Vs. Tara Singh), and has been decided today i.e. 7.4.2010. Like in that case, it was pleaded that the respondent-plaintiff was not given assistance of the co-worker to defend him during the course of inquiry. This, as per the respondent-plaintiff, was enough to vitiate the inquiry proceedings. The main question thus arising for consideration in this case also is to see if there was any requirement in law to provide the assistance of the co-worker to the respondent-plaintiff and the effect thereof if the assistance is not so provided. Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, makes a provision for providing assistance of the Government employee to a delinquent employee to present the case on his behalf. It reads as under:- “While the Government employee is permitted to take the assistance on another Government employee or a retired Government employee to present his case, the inquiry officer should not permit him to engage a legal practitioner unless the presiding officer is a legal practitioner or the punishing authority has permitted the Government employee to engage a legal practitioner.” The record would show that the officer has been detailed to present the case on behalf of the Department i.e. An officer was detailed as presenting officer. Thus, the department may have been REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 4 }: placed at some advantageous position. The appellate Court had considered the aspect of prejudice, if any caused to the respondent- plaintiff, due to the fact that he was not provided assistance of the co-worker. The factual finding returned by the court is that this aspect had caused prejudice to the case of the respondent-plaintiff as he being a low rung Constable was not acquainted with the implication of the departmental inquiry. It was pleaded by the respondent-plaintiff that he was not given the assistance of co-employee and, thus, was deprived of fair chance to defend himself. It is noticed by the first Appellate Court that the respondent-plaintiff had stated that he being an illiterate person did not know the intricate procedure of enquiry and that he was deprived of the implication of getting service of co- employee. Plea, thus, is that the plaintiff was incapable of defending himself and thus was prejudiced due to non-providing him the assistance of the co-worker. Nothing substantial could be pointed out by the State counsel, to rebut this factual finding. Reference here may be made to the observations made by the Hon'ble Supreme Court in The Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and others, AIR 1983 Supreme Court 109. It is held that the time honoured and traditional approach is that a domestic enquiry is a managerial function and that it is best left to management without the intervention of persons belonging to legal profession. This approach was found to be grounded on the view that a Domestic Tribunal holding an enquiry where the strict rule of evidence and the procedural juggernaut are not attracted, the delinquent officer would be able to defend himself without any assistance. The Hon'ble REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 5 }: Supreme Court observed that the essential assumption underlying this belief is questionable but this view still held the field for sometime. In Brooke Bond India (Pvt.) Ltd. Vs. S.Subba Raman, (1961) 2 Lab LJ 417 and Dunlop Rubber Co. Vs. Workmen, AIR 1965 Supreme Court 1392, it was held that in a disciplinary enquiry before a Domestic Tribunal, a person accused of misconduct has to conduct his own case and, therefore, as a corollary, it can not be said that in such an enquiry against a workman, natural justice demands that he ought to be represented by a representative of the Union, much less of legal profession. To buttress this approach, it was observed that unless Rules regarding holding enquiry do not make an enabling provision that the workman charged with misconduct is entitled to be represented by a legal practitioner, the Enquiry Officer and/or the employer would be perfectly justified in rejecting such a request as it would vitiated the informal atmosphere of Domestic Tribunal. The Hon'ble Supreme Court in Dilipkumar Raghavendranath Nadkarni's case (supra), however, made a reference to a striking different view sounded by Lord Denning in Pett Vs. Greyhound Racing Association Ltd., (1968) 2 All ER 545. In this case, Lord Denning observed as under:- “I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by counsel or solicitor.” This was a case where the concerned authority had directed an enquiry to be held into the withdrawal of a trainer's dog REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 6 }: from a race at a stadium licensed by the National Gray hound Racing Club. The Rules of the Club did not prescribe the procedure to be followed in such an enquiry. There was a negative provision excluding a legal practitioner from such an enquiry. The procedure for enquiry was the routine one of examination and cross- examination of the witnesses. The licensee charged with misconduct had sought permission to be represented by a counsel, which request was turned down. Lord Denning had made the above noted observation, when the matter had reached before him in the Court of appeal. The trend, therefore, is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a result of an enquiry to enable him to defend himself adequately. The Hon'ble Supreme Court in the case of Dilipkumar Raghavendranath Nadkarni (supra) was concerned with a narrow question to the effect that where in an enquiry an employee appoints a presenting-cum-prosecuting officer to represent the employer by person who is legally trained, the delinquent employee, if he seeks permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity. In this regard, the Hon'ble Supreme Court observed as under:- “Even in a domestic enquiry there can be very serious charges and adverse verdict may completely destroy the future of the delinquent employee. The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Such an REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 7 }: enquiry is generally treated as a managerial function and the Enquiry Officer is more often a man of the establishment. Ordinarily he combines the role of a Presenting-cum-Prosecuting Officer and an Enquiry Officer a Judge and a prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a domestic tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a domestic tribunal. We have moved far away from this stage. The situation is where the employer has on his payrolls labour officers, legal advisers – lawyers in the garb of employees and they are appointed Presenting-cum-Prosecuting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself. Now if the rules prescribed for such an enquiry did not place 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 a reasonable opportunity to defend himself should be permitted to appear through a legal practitioner. Why do we say so? Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere? Domestic enquiry is claimed to be a managerial function. A man of the REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 8 }: establishment dens the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court presided over by an unbiased judge? The enquiry officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighed scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi-judicial tribunal cannot view the matter with equanimity on inequality of representation. This Court in M.H.Hoskot v. State of Maharashtra, (1978) 3 SCC 544: (AIR 1978 SC 1548) clearly ruled that in criminal trial where prosecution is in the hands of public prosecutor, accused for adequate representation, must have legal aid at State cost. This will apply mutatis mutandis to the present situation.” Though in the case of Dilipkumar Raghavendranath Nadkarni (supra), the Hon'ble Supreme Court considered the case from the angle where the department was represented by legally REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 9 }: trained presenting Officer but the principle as would emerge from this judgment would be that the scales should be evenly balanced and should not be tilted by allowing one side to have an unfair advantage over the other. The issue involved in such cases would be the violation of principles of natural justice on the ground that a person is not afforded a reasonable opportunity to defend himself. In Bhagat Ram Vs. State of Himachal Pradesh, AIR 1983 Supreme Court 454, the Court has considered this aspect and has viewed that a principle deducible in this regard upon true construction of the relevant Rule is that where the Department is represented by a presenting officer, it would be the duty of disciplinary authority, more particularly where he is Class IV Government servant, whose educational equipment is such as would lead to an inference that he may not be aware of technical Rules prescribed for holding enquiry, that he is entitled to be defended by another Government servant of his choice. It is also observed that if the delinquent officer is not informed of his rights and an over all view of the enquiry shows that delinquent Government servant was at a comparative disadvantage compare to the disciplinary authority represented by the Presenting Officer, unless it is shown that he had not suffered any prejudice, vitiate the enquiry. Justice and fair play demands that where in a disciplinary proceedings the Department is represented by a Presenting Officer, it would be incumbent upon the Disciplinary Authority while making appointment of a Presenting Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and his right to take help of another Government servant before commencement of the enquiry. REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 10 }: This requirement may be so projected from the examination of the Rules but still it will have to be seen in each case if on this count, the delinquent employee has suffered any prejudice. First it will have to be shown that the employee is such, who was not capable of examining or cross-examining the witness because of his low rung position and he was not aware of the intricate procedure followed in the enquiry. The requirement of ascertaining this fact whether the delinquent employee would wish to be represented by a co-employee would also have to be examined in the light of the position of the employee. No doubt, the disciplinary authority may be expected to ascertain the same from the employee while detailing a Presenting Officer, yet this aspect has to be seen in the light of the facts and circumstances of each case and there may be instances where the concerned delinquent employee may still wish to proceed without the help of co-employee. Since in this case, the Appellate Court has found as a matter of fact that the respondent-plaintiff being low rank Constable was not acquainted with the implication of the departmental enquiry, it is possible to say that he suffered a prejudice in presenting his case and the first Appellate Court has rightly come to his rescue. In this background, it is not appropriate for me to see in case mere act of non-providing assistance of the co-worker would in itself lead to vitiate the proceeding or if there was any requirement on the part of the department to apprise the respondent-plaintiff about his right to defend by the co-worker. Since the factual finding has been returned in this case to say that the respondent-plaintiff was put to prejudice on this ground, I do not consider it appropriate to go into REGULAR SECOND APPEAL NO.1345 OF 1987 :{ 11 }: this aspect whether this in itself would be a question requiring consideration that if this would lead to vitiating the proceedings. The finding in favour of the respondent-plaintiff was returned in the year 1986. Apparently, he had continued to serve the department for all these years. As an interim measure, the payments due to the respondent-plaintiff on account of decretal amount was also directed to be paid after obtaining adequate security of funds, if necessary. In this background, I am inclined to uphold the view expressed by the First Appellate Court and would dismiss the Regular Second Appeal. April 07, 2010 ( RANJIT SINGH ) khurmi JUDGE