P. K. BAHRI ( 1 ) THE only question which arises for consideration in the present, writ petition is whether the disciplinary authority was right in declining the request of the petitioner to be represented by a counsel in the disciplinary proceedings. The petitioner admittedly is facing domestic inquiry and under Rule 25 clause (6) of the BHEL CDA Rules 1975, a delinquent employee against whom the disciplinary proceedings have been instituted for imposition of the major penalty is not to be allowed to engage a legal practitioner to represent his case before the Inquiry Authority unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case permits the engagement of a legal practitioner by the delinquent employee. ( 2 ) THE charges which the petitioner is facing for imposition of major penalty pertain to his having colluded with Deepak Dhawan and Mahesh Sharma while working in corporate office with an intent to make monetary gain for themselves by fraudulent means. Deepak Dhawan made claims for the expenditure purported to have been incurred for official purposes and petitioner bypassing the accounting practices passed these claims and Mahesh Sharma made payments for these claims during the period August1991 to July 1993 to the tune of Rs. 3,14,793. 03 IP which was shared by them thereby causing loss to the company. The Articles of Charges are as follows: "article 1 That Shri S. S. Sharma forged cash memos in his own handwriting and supplied the same to Shri Deepak Dhawan in order to enable him to submit false claims. Shri Sharma passed and authorised payment of these bills with intent to share monetary gain out of it. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5) and (21) of Rule 5 of BHEL CDA Rules, 1975. ARTICLE 2 That while working as Accounts Officer in the aforesaid office Shri S. S. Sharma with intent to make undue monetary gains passed and authorised payment of claims of Shri Deepak Dhawan overlooking and bypassing the normal accounting practices. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5); (9) and (21) of Rule 5 of BHEL CDA Rules 1975. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5); (9) and (21) of Rule 5 of BHEL CDA Rules 1975. ARTICLE 3 Shri S. S. Sharma deliberately and dishonestly with an intent to make undue monetary gain for himself, Shri Deepak Dhawan and Mahesh Sharma by overlooking and without raising any objection on the claims submitted by Shri Dhawan passed and authorised payment for fake cash memos and fake machine printed receipts which did not bear even basic details such as serial number of the cash memo, name of shop and the address etc. Shri Sharma also passed and authorised for payments, postdated cash memos, one year old cash memos and cash memos not in the name of claimant without raising any objection on the validity of such claims. Shri Sharma by his above act committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 of BHEL CDA Rules, 1975. ARTICLE 4 That Shri S. S. Sharma deliberately and dishonestly with intent to make monetary gain passed and authorised claims of Shri Deepak Dhawan for a sum of Rs. 2887. 00 in respect of 5 cash memos bearing No. 128880 dated 30/12/92,131128 dated 18/3/93, 131135 dated 20/3/93,12o596 dated l7. 2. 92 and l28768 dated l4. 12. 92 issued by Gift Emporium, Tania House, Green House, Green Park Extension Market, New Delhi knowing that the bills which were being passed were for the purchase of the same items on the same day one against cash memo and the other against the machine printed receipt (validation slip) issued at the time of purchase, by the aforesaid Emporium, In four instances the cash memos and the machine printed receipts were attached under the same claim voucher. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 of BHEL CDA Rules 1975. ARTICLE 5 Shri S. S. Sharma passed and authorised payment of claims of Shri Deepak Dhawan in some instances without even checking the total of the individual cash memos with intent to make undue monetary gain. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 ofbhel CDA Rules, 1975. ARTICLE 6 Shri Sharma tampered with cash memo No. 41139 dated 29. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 ofbhel CDA Rules, 1975. ARTICLE 6 Shri Sharma tampered with cash memo No. 41139 dated 29. 1. 93 from M/s. Annapuma Sweets, Yusuf Sarai by enhancing the amount from Rs. 8. 00 to Rs. 148. 00 in his own handwriting. He then supplied this bill to Shri Deepak Dhawan to enable him to claim the same from the company. The bill was passed and authorised for payment by Shri Sharma with intent to make monetary gain. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 of the BHEL CDA Rules, 1975. ARTICLE 7 Shri S. S. Sharma in collusion with Shri Deepak Dhawan and Shri Mahesh Sharma and with intent to make undue monetary gain passed and authorised for payment the false claims of Shri Deepak Dhawan made on the basis of cash memos from Khanna Gift House, 79, Central Market, Lajpat Nagar, New Delhi, for purchase of items like dolls, balls, bats and other toys purportedly for official purposes. He repeatedly overlooked the sequential order of cash memo Nos, the date of purchase the number of times purchase was made on a single day and the items purchased under the cash memos. Shri Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 of the BHEL CDA Rules 1975. ARTICLE 8 Shri Sharma passed and authorised payment of claims for petty/contingent expenditure preferred by Shri Deepak Dhawan and purported to have been desired/approved by AGM (P) deliberately overlooking the actual powers of AGM (P) with an intent to make undue monetary gains. PERIOD AMOUNT 1st April 1993 to 24th June 1993 8,177. 45 Shri S. S. Sharma by his above act has committed misconduct in terms of sub rules (1), (2), (5), (9) and (21) of Rule 5 of BHEL CDA Rules 1975. " ( 3 ) THE charges are sought to be proved by relying on voluminous documentary evidence and oral evidence of General Manager, Incharge of Finance, Deputy General Manager (IA) and Deputy General Manager (Vigilance) and a few other witnesses. The petitioner, who himself is a law graduate. " ( 3 ) THE charges are sought to be proved by relying on voluminous documentary evidence and oral evidence of General Manager, Incharge of Finance, Deputy General Manager (IA) and Deputy General Manager (Vigilance) and a few other witnesses. The petitioner, who himself is a law graduate. has pleaded that he has been suffering from diseases like paralysis, diabetes and hyper tension and thus he would not be able to conduct his defence himself in the disciplinary proceedings. He has also pleaded that despite his best efforts he has not been able to find any competent officer from the BHEL who could defend himself inasmuch as no officer is prepared to come as defence assistant in view of the fact that very high officers of the BHEL are cited as witnesses to prove the case against him. 4. The respondent in the counter-affidavit has pleaded that there is no legal right of the petitioner to be represented by a legal practitioner in the disciplinary proceedings and Presenting Officer who has to conduct the proceedings on behalf of the department is also not a legally trained person and thus, the disciplinary authority has exercised discretion in a rational manner in declining the prayer of the petitioner for appearing through a legal practitioner in the disciplinary inquiry. It is also averred in the counter-affidavit that mere fact that certain higher officers are to appear as w itnesses in the inquiry does not in any manner inhibit any other officer of the choice of the petitioner to represent the petitioner in the said disciplinary proceedings. It has been also pleaded that as the petitioner himself is a law graduate, he does not need assistance of anyone to represent him in the disciplinary proceedings. 5. It has been also pleaded that as the petitioner himself is a law graduate, he does not need assistance of anyone to represent him in the disciplinary proceedings. 5. Counsel for the petitioner has made reference to the case of Anandram Jiandrai Vaswani Vs Union Of India and Others, 1982 (3) SLR 172, where a Division Bench of the Calcutta High Court, keeping the facts of that case in view, came to the conclusion that request of the delinquent for asking permission to engage a legal practitioner to defend himself being based on good reasons ought to have been allowed, In the said case, the important witnesses who were appearing against the delinquent who have to be cross-examined carefully were senior officers and no other member of the department dared to Volunteer his services to represent the delinquent officer as the principal witnesses were senior officers. The department had also an experienced police inspector for conducting the proceedings and certain legal and factually complexed points were involved in the case and the delinquent was also not in a fit statement of mind due to ill-health to conduct the defence proceedings himself The delinquent in the said case was of advanced age and under serious mental distress and one of the reasons was that the person whom the delinquent engaged was not being relieved by his department for defending ( 6 ) HE has also made a reference to Board of Trustees of the Port of Bombay Vs Dalipkumar Raghavendranath Nadkarni and Others, AIR 1983 SC 109 . In this case the request of the delinquent employee for being represented by a lawyer was refused. However, it was found that the delinquent officer was pitted against a legally trained mind. The Supreme Court held that the time honoured and traditional approach is that a domestic inquiry is a managerial function and it is best left to management without the intervention of persons belonging to legal profession. This approach was grounded on the view that a domestic tribunal holding an inquiry not being unduly influenced by strict rules of evidence and the procedural juggernaut should hear the delinquent employee in person and in such an informal inquiry, the delinquent officer would be able to defend himself. This approach was grounded on the view that a domestic tribunal holding an inquiry not being unduly influenced by strict rules of evidence and the procedural juggernaut should hear the delinquent employee in person and in such an informal inquiry, the delinquent officer would be able to defend himself. It was held that the essential assumption underlying this belief is questionable but it held the field for sometime and there are decisions of the court in which it has been held that in a disciplinary inquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and, therefore, as a corollary it cannot be said that in such an inquiry against a workman natural justice demands that he ought to be represented by a representative of his Union much less a member of the legal profession. (See Brooke Bond India (Pvt.) Limited Vs S. Subba Raman, 1961 (2) Lab LJ 417 and Dunlop Rubber Company Vs Workmen, AIR 1965 SC 1392 ). ( 7 ) THE Supreme Court further held that in those judgments an observation was made that unless rules prescribed for holding the inquiry do not make an enabling provision that the workman charged with misconduct is entitled to be represented by a legal practitioner, the Inquiry Officer and/or the employer would be perfectly justified in rejecting such a request as it would vitiate the informal atmosphere of a domestic tribunal. The Supreme Court made reference to the view of Lord Denning inpett Vs Greyhound Racing Association Ltd, (1968) 2 All ER 545, wherein an inquiry was to be held into the withdrawal of a trainer s dog from the race at a stadium licensed by the National Greyhound Racing Club. The rules of the Club did not prescribe the procedure to be followed in such an inquiry, and there was negative provision excluding a legal practitioner from such an inquiry. Lord Denning has observed in such a case as follows: "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. Lord Denning has observed in such a case as follows: "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. " ( 8 ) THE Supreme Court then observed that 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 inquiry, to enable him to defend himself adequately, to be permitted to be represented by a legal practitioner. However, a note of caution was sounded by the Supreme Court by observing that the Supreme Court wanted to be very clear that it did not want to go that far in that particular case because it was not necessary to do so. In that particular case as it was found that Presenting Officer was legally trained person, it was held that declining the employee to defend himself by a legal practitioner has resulted in a prejudice being caused to the delinquent employee in conducting his defence which is in violation of one of the essential principles of natural justice, namely, that a person against whom inquiry is held must be afforded a reasonable opportunity to defend himself. ( 9 ) THE Supreme Court relied on the case of C. L. Subramaniam Vs Collector of Customs, Cochin, AIR 1972sc 2178, for this opinion. This judgment was given by two Hon ble Judges of the Supreme Court. ( 10 ) HOWEVER, in the case of Cast Dying and Chemicals Ltd. Vs Ram Narain Tripathi, 1992 (3) Scale 518 , same question again came up for consideration as to whether it is a requirement of rule of natural justice or not that a delinquent should be allowed to be represented by a counsel in a domestic inquiry. The judgment was delivered by three Hon ble Judges. The judgment was delivered by three Hon ble Judges. The whole case law was surveyed and the observations of Lord Denning quoted above were considered but later on in that very case during the trial another Judge found it difficult to confirm the view of Lord Denning in view of the Privy Council decision in University of Ceylon Vs E. F. W. Fernanda, 1960 ( 1) WLR 223 and such a right was not allowed to the delinquent employee holding that it was not elementary for dispensation of justice. (See Pett Vs Greyhound Racing Association Ltd. (supra) ). However, in Enderby Town Football Club Ltd. Vs Football Association Ltd. , (1971)1 Ch. D. 591, again the same question arose for decision and even Lord Denning modified his view by posing the question "is a party who is charged before a domestic tribunal entitled as of right to be legally represented? and answered it by saying "much depends on what the rules say about it" and laid down that if the rules were silent the party has no absolute right to be legally represented and it is a matter left to the discretion of the tribunal which must be properly exercised and also observed as follows:- "it may be a good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation. Justice can often be done in them better by a good layman than by a bad lawyer. " (See Enderby Town Football Club Ltd. Vs Football Association Ltd. , (1971) 1 Ch. D. 591) ( 11 ) THEN some other English judgments were considered and altrmately the Supreme Court held that from the above decisions of the English Courts it seems clear that the right to be represented by a counsel or agent of one s own choice is not an absolute right and can be controlled, restricted or regulated by Rules or Regulations. However, if the charge is of a serious and complex nature, the delinquent s request to be represented through a counsel or agent could be conceded. ( 12 ) THE Supreme Court then considered the position of law in India and made reference to judgment delivered in the case of Kalindi and Others Vs Tata Locomotive and Engineering Co. However, if the charge is of a serious and complex nature, the delinquent s request to be represented through a counsel or agent could be conceded. ( 12 ) THE Supreme Court then considered the position of law in India and made reference to judgment delivered in the case of Kalindi and Others Vs Tata Locomotive and Engineering Co. Ltd. , (1960)3 SCR 407 and Brooke Bond India (Pvt.) Limited (supra) wherein it has been held that there is no right to representation as such unless the company by its standing orders recognises such a right After referring to facts of those judgments the Supreme Court held in para 16 that it is, therefore, clear from the above case law that the right to be represented through counsel or agent can be restricted. controlled or regulated by statute, rules/regulations or standing orders and a delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. It also was laid down authoritatively "requirement of the rule of natural justice in so far as the delinquent s right of hearing is concerned cannot and does not extend to a right to be represented through counsel or agent". ( 13 ) A single Judge of the Karnataka High Court in K. G. Shenoy Vs Disciplinary Authority, 1994 (69) FLR 280, while following the ratio laid down by the Supreme Court in the case of Cast Dyes and Chemicals Pvt. Ltd. (supra), came to the conclusion that in a case where the delinquent is not in a position to express himself and his livelihood is at stake or his social or financial status are likely to be ruined or wherever complicated questions are raised which the delinquent is unable to comprehend, the question of such delinquent employee being afforded the assistance of a counsel can be considered. ( 14 ) SO. it is now settled position of law that there is no legal right to be represented by legal practitioner or agent available to the delinquent facing the departmental disciplinary proceedings, but such a right can be made available by statutes, rules, regulations or standing orders, as the case may be. Such right can be restricted, controlled or regulated. The rules of natural justice do not contemplate availability of such a right. Such right can be restricted, controlled or regulated. The rules of natural justice do not contemplate availability of such a right. In case there is a discretion conferred on the appropriate authority for permitting or not permitting a delinquent to be represented through a legal practitioner or agent then such a discretion must be exercised on reasonable grounds. ( 15 ) IN the present case there is no absolute bar in the Regulations for appearance of the legal practitioner before the Inquiry Officer in the disciplinary proceedings. A discretion has been given to the disciplinary authority to allow the request of the delinquent employee to be represented by a legal practitioner in a suitable case. So. it will depend on the facts of a particular case whether such a discretion should or should not be exercised in favour of a delinquent employee. Such a discretion, of course, cannot be exercised arbitrarily or on the whims and caprices of the disciplinary authority. ( 16 ) IN the present case we find that there are pretty senior officers who are to appear as witnesses in support of the charges and the charges also are numerous which have to be proved by proving documents running into about 1000 pages. It is evident that complicated questions of law and fact would arise for decision in these disciplinary proceedings. Mere fact that delinquent himself is a law graduate is not in our view sufficient to hold that delinquent is not to be permitted to be represented by a legal practitioner in view of the peculiar facts of this case. It is also to be emphasized that delinquent has made an averment that despite his efforts no other officers of the organization has come forward to become his defence assistant in view of the fact that very high officers have to appear as witnesses in support of the charges. It cannot be said that this averment of the petitioner is without any basis. ( 17 ) IN view of the above discussion, we conclude that the disciplinary authority has not exercised its discretion properly in declining the request of the petitioner to be represented by a legal practitioner in the inquiry proceedings. It cannot be said that this averment of the petitioner is without any basis. ( 17 ) IN view of the above discussion, we conclude that the disciplinary authority has not exercised its discretion properly in declining the request of the petitioner to be represented by a legal practitioner in the inquiry proceedings. We hence, allow the writ petition, make the rule absolute and quash the impugned order and direct that the disciplinary authority shall permit the petitioner to be represented by a legal practitioner of his choice in the said inquiry proceedings. Parties are, however, left to bear their own costs.